A.L Bahri, J.:— This Revision Petition has been filed by Ram Sarup Bhalla, the landlord, against order dated March 30, 1989. passed by Rent Controller, Ludriana dismissing his application filed under Section 13-A, of the East Punjab Urban Rent Restriction Act for ejectment of the tenant Barkat Singh, respondent, from a house situated in Nigar Mandi, Ludhiana.
2. The petitioner claimed ejectment of respondent on the ground that he had retired from Govenment service and wanted to occupy the house, which was with the respondent as a tenant on a monthly rent of Rs. 325/- plus house tax. The petitioner retired from government service on October 31, 1985 from the Education Department. He did not own any other house in Ludhiana and was not occupying any-other house in the urban area Ludhiana. The portion of the house in dispute already in possession with him was insufficient and inadequate. Thus, he required the house in dispute for his own and family's use and occupation. The petitioner wanted to start his law practice at Ludhiana. His son, who has completed L.L.B course also was to settle at Ludhiana His youngest daughter, a student of B.A required a room for studies. His wife, a chronic patient of arthitities could not go upstairs, thus, be needed the ground floor.
3. After permission was allowed to the respondent to contest the petition, he denied relationship of landlord and tenant. The house belonged to Raksha Parbhakar daughter of Karam Chand Parbhakar, the petitioner had no title in the property, the property was rented, out for non-residential purposes and could not be got vacated on the alleged ground of personal necessity. The petitioner did not comply with the necessary ingredients of Section 13(1)(a) of the East Punjab Urban Rent Restriction Act. The petitioner was estopped by his act and conduct from filing the application for ejectment. The petitioner filed replication inter alia admitting that originally Raksha Parbhakar was the owner, but he claimed that she was married to him and after her death he succeeded to the property left by her. Thus, he was competent to file the application. The following issues were framed on the pleadings of the parties:—
1. Whether the respondent is liable to be ejected from the premises in dispute on the grounds mentioned in the application 7 OPA
2. Whether there exist relationship of landlord and tenant between the parties? OPR
3. Relief
4. Under issue No. 2, it was held that there was no relationship of landlord and tenant between the parties. The marriage of the petitioner with Raksha Parbhakar was not proved and it was not established that he was the only heir of Raksha Parbhakar. The present application was not maintainable as on the same ground earlier application was withdrawn by the petitioner without any permission to file fresh application. It was further held that the premises were let out for the purposes of business and on the alleged ground the ejectment of the tenant could not be ordered. The application was rejected.
5. At the initial stage of this Revision Petition, the petitioner produced photostat copy of letter vide which he was relieved w.e.f October 31, 1985 on attaining the age of superannuation.
6. During arguments the following four questions have been debated:—
(i) No issue was framed by the Court as there was no plea that earlier the petitioner had filed an application on the same ground which was withdrawn without permission to file fresh application. This point according to the counsel for the petitioner could not be taken into consideration merely on the basis of some admission made by the petitioner while appearing as a witness.
(2) The Rent Controller wrongly held that the premises were let out for business purposes. In fact, it is a residential house and the petitioner, who is a specified landlord was entitled to the possession of the same as he was retired from Government service.
(3) Certificate of retirement was in fact filed along with the application for ejectment. Even if, it was misplaced evidence could be led to prove that the petitioner, in fact, had retired from Government Service.
(4) The petitioner being the husband of Raksha Parbhakar was a landlord after her death having succeeded to the property and thus there was relationship of landlord and tenant between the parties.
7. In the written statement filed by Barkat Singh, respondent, no plea was taken that the landlord had earlier filed an application as specified landlord for ejectment of the tenant on the ground that he had retired and the same was dismissed. It was on that account that no issue was framed by the Rent Controller. When Ram Sarup Bhalla appeared as AW-1 during cross-examination, he did state that he had moved an application for ejectment prior to the present application, but that was withdrawn without obtaining permission to file present application for ejectment. He further admitted that the ground of ejectment were the same as in the present ejectment application. Apart from the above admission, there is no other evidence regarding this fact Neither the original application nor order of the Rent Controller passed thereon was produced. Another fact worth noticing is that the present ejectment application which exists at page 2 of the records shows that it is amended petition under Section 13 A of the East Punjab Urban Rent Restriction Act. Counsel for the parties were not in a position to state as to whether in this very case earlier petition was filed and the same was ordered to be amended. The record received from the Rent Controller does not indicate that any application was filed which was amended thereafter, On behalf of the petitioner, reliance has been placed on the decision of Gauhati High Court in Dinabandhu Deva Bhagwati v. Nitada Bala Devi . AIR 1982 Gauhati 42. In that case at the time of arguments objection was raised regarding maintainability of the suit in view of Order 23 Rule. 1 of the Code of Civil Procedure. There was no pleading to that effect in the written statement nor any issue was framed in that regard. It was held that the trial Judge could have called upon the defendant to amend his pleadings to take up the plea and frame issue to decide the question whether subsequent suit was barred under Order 23 Rule) of the Code of Civil Procedure Since it was not done, the trial Judge had no jurisdiction to enter into controversy whether the suit was barred under Order 23 Rule. 1 of the Code. This judgment, no doubt, helps the petitioner. The matter was earlier considered by the Supreme Court in State Of Punjab v. Bua Das Kaushal† . 1970 3 SCC 656. Plea of res judicata was raised inspite of the fact that there was no plea in the written statement and no specific issue was framed. It was held that if necessary facts were present in the mind of the parties and gone into by Court, there could not be any waiver by absence of specific plea on issue. Subsequently, the Division Bench of this Court dealt with a similar matter in Sh. Mehtab Singh Advocate v. Shri Tilak Raj Arora . 1988-1 93 PLR 269.. It was held that the general principles contained in the Civil Procedure Code including Order 23 Rule. 1, were applicable to the proceedings under the Rent Act being based on justice, equity and good conscience. It was further held that a second petition for the ejectment of the tenant on a ground on which an earlier petition was got dismissed as with Jrawn without liberty to file a fresh petition would be barred and not maintainable. After going through the statement of Ram Sarup Bhalla, A.W 1 no manner of doubt is left that the similar petition for ejectment of the respondent was filed on the same ground on which the present petition has been filed. In view of this admission it was not required of the respondent to produce any other evidence. It was for the petitioner if he so closed to produce his previous ejectment application and the order passed thereon if be was to riggle out of the admission made by him. Since permission of the Court, was not obtained at the time of withdrawal of the earlier petition which was on the same ground, the present petition is not maintainable. Finding of the Rent Controller in this respect is, therefore, affirmed:
8. Next question relates to the nature of the building. If the building is a residential house or a scheduled building and the petitioner-landlord on his retirement puts his claim for ejectment of the tenant from the said premises as required under Section 13-A of the Act, he could succeed “Residential building” has been defined under Section 2 (g) of the Act as a building which is not a non-residential building and “Non-residential” building has been defined under Section 2 (d) of the Act as a building being used solely for the purpose of business or trade. However, proviso added thereto clerifies that if for the purposes of guarding it somebody was residing therein it would not convert into a non-residential building to a residential building. In the petition filed Ram Sarup Bhalla, in paragraph 1 therein described himself as owner-landlord of house No. B-II-1782, Nighar Mandi, Ludhiana. In the written statement filed by Barkat Singh, respondent, in the preliminary objection, it was asserted that the property in dispute, was let out for non-residential purposes. On merits in paragraph 1, it was asserted that the property in dispute was a non-residential, building and not a house. AW 1 Ram Sarup Bhalla in examination-in-chief did state that Smt. Raksha Parbhakar died on July 23, 1981 at Ludhiana in the house, portion of which has been rented out to the respondent. He produced Exhibit A/1 copy of the plan of the demised premises. He further claimed that on the upper floor there was one room and kitchen which were in his possession Apart from the above, he did not further ellaborate the nature of the premises let out to the tenant or the purpose for which the same was let out. In his cross examination he admitted that no rent note was executed regarding renting out the premises in dispute, either by him or by the tenant Rather he admitted that the premises were let out by Smt. Raksha Parbhakar to the respondent though in his presence. He is silent about the purpose of letting which was agreed to by Smt. Raksha Parbhakar and the tenant. During cross-examination he further admitted that business was being carried out under the name and style of Guru Minak Store, Ludhiana. On the other band, Barkat Singh appeared as R.W 1 and categorically stated that he was carrying on his business under the name and style of Guru Minak Store, Chaura Bazar, Ludhiana. The property was taken on rent from Smt. Raksha Parbhakar for the purpose of business and the same is being used for non-residential puropses. During cross examination he stated that no rent note was executed. He could not tell the time when the premises were taken on rent from Smt. Raksha Parbhakar. He further stated that after the death of Smt. Raksha Parbhakar, he started paying rent to her brothers and sisters and be produced the receipts Exhibits R/1 to R/3. These receipts describe the property in dispute as godown.
9. Mr. Rajiv Bhalla, Advocate appearing on behalf of the petitioner has argued that much importance should not be attached to the three receipts, produced by the respondent Exhibits R/1 to R/3, as sisters and brothers of Smt. Raksha Parbhakar are now siding with the tenant and to oblige him had executed these receipts wherein the property in dispute described as godown. Even if these receipts are not taken into consideration, the petitioner has failed to establish that the premises in dispute is either a residential building or a scheduled building. His own statement is lacking in this respect Rather he admitted during cross-examination that the respondent had been doing his business in the premises in dispute under the name and style of Guru Minak Store Barkat Singh, tenant has also deposed that after he took the premises on rent, he had been doing business therein, which fact is not disputed. In a case where no rent note is coming forward to know the purpose of letting, the purpose for which the premises are being used since the inception of the tenancy can be considered the purpose of letting and in the present case as per evidence produced the Rent Controller rightly came to the conclusion that the premises were net a residential house, but that is a non-residential building as it is being used for store or a godown. The finding of the Rent Controller in this respect is also affirmed.
10. The next question debited on behalf of the petitioner is that even if necessary certificate of the appointing authority regarding retirement of the petitioner was not filed along with the application for ejectment of the tenant, on that ground alone, the application could not be rejected, as the factum of retirement could otherwise be proved. There is force in this contention. The production of certificate of retirement by the appointing authority may be conclusive proof of a fact of retirement of a government servant, to be taken into consideration in the summary proceedings for the ejectment of a tenant, but it cannot be said that the factum of retirement of a government servint in such proceedings cannot be otherwise established. In the present case, it was alleged on behalf of the petitioner that such a certificate was, infact, filed along with the application for ejectment and an attempt was also made to produce an affidavit of the counsel for the petitioner. Be that as it may, in appeal, photostat copy of the letter relieving the petitioner from government service on attaining the age of superannuation his been filed. If the said letter is admitted into evidence, it can be established that the petitioner had retired from govern meat service w.e.f October 31, 1985. Such a matter was under consideration of this Court in Shri Surjit Singh v. Beant Singh . 1990-1 97 PLR 238.. G.C Mital, J. held that the question of retirement of Principal Scientific Officer from the Ministry of Defence could be proved by leading evidence even if the certificate from the proper competent authority was not produced along with the ejectment application.
11. Be that as it may, no further enquiry in his respect is called for in view of the finding already recorded that the building is a non residential building and ejectment therefrom cannot be ordered under Section 13-A of the East Punjab Urban Rent Restriction Act.
12. The last question debated at the hearing is about the relationship of landlord and tenant between the parties. At the outset, it may be stated that the petitioner alleged that he had let out the premises to the respondent. However, at the time of evidence, be admitted that it was Smt. Raksha Parbhakar, who had let out the premises to the respondent. The only question for further consideration is that as to whether on the death of Smt. Raksha Parbhakar, the present petitioner succeeded to her as her husband, to be treated as a landlord of the premises in dispute. In this respect reliance was placed on succession certificate obtained by the petitioner from the Civil Court at Patiala. This certificate also referred to the premises in dispute and is Exhibit A/4. This certificate is silent about the relationship of the petitioner with Smt. Raksha Parbhakar. However, in order Exhibit A/5 passed by the Senior Subordinate Judge, Patiala while issuing the succession cerfificate, it was mentioned that the same was issued to Ram Samp Bhalla in respect of assets and securities of Smt. Raksha Parbhakar wife of the applicant. At this stage, these orders are not taken into consideration for the simple reason that the matter is still sub judice as brothers and sisters of Smt. Raksha Parbhakar had approached the Court at Patiala for revoking the succession certificate. No finding after discussion of the evidence was recorded in these orders that, Ram Sarup Bhalla, infact, was husband of Smt. Raksha Parbhakar. Some of the documents, produced by the petitioner came into existence after the death of Smt. Raksha Parbhakar such as death certificate Exhibit A/6 or Exhibit A/3 a copy of entry from the Municipal records showing the name of Ram Sarup Bhalla as owner. Further reliance is placed on Exhibit A/7 which is only a certificate issued by the office of Food & Supplies Controller that in the ration card, issued in the name of Smt. Raksha Parbhakar, the name of Ram Sarup Bhalla was also added. Further reliance was placed on a certificate issued by the Food and Supplies Controller, Patiala that a ration card was issued in the name of Smt. Raksha Parbhakar, resident of H. NO. B-30/349, Mohilla Arorian, Patiala and in column No. 2 the name of her husband was mentioned as Ram Sarup Bhalla. Much importance cannot be attached to this certificate, as it is cot shown there as to when the ration card was issued to Smt. Raksha Parbhakar by the Patiala office. As a matter of the application filed by Smt. Raksha Parbhakar should have been produced on record, if she had admitted therein or described herself as wife of Ram Sarup Bhalla. On the same ground much importance cannot be attached to the voters list Exhibit A/8 for the year 1980 relating to Patiala. The documentary evidence referred to above is not considered reliable, conclusive or sufficient evidence to prove the marriage of Smt. Raksha Parbhakar with Ram Sarup Bhalla. We are left with the oral testimony of Ram Sarup Bhalla who appeared as A.W 1. He simply described Smt. Raksha Parbhakar as his wife having married in December, 1954 at Dhuri according to Hindu Rites No child out of their wed-lock was born. Smt. Raksha Parbhakar died on July 13, 1981 at Ludhiana. He further stated that he used to visit Smt. Raksha Parbhakar at Patiala and they had been lining as husband and wife since 1954 till her death. They had joint ration card and thus he referred to Exhibit A/7. He further admitted that he has another wife from whom, he has a son, who is a Law Graduate. On the other hand, Barkat Singh, RW. 1 maintained that Smt. Raksha Parbhakar did not marry during her life time and he denied that Ram Sarup Bhalla was her husband. The solitary statement of the petitioner is not considered sufficient to prove his marriage and relationship with Smt. Raksha Parbhakar. The petitioner could produce best evidence either of the relations, who attended his marriage with Smt. Raksha Parbhakar or some action taken by him or by her informing their respective Government Departments, about their marriage. In the state of evidence produced on the file, the Rent Controller rightly came to the conclusion that the petitioner had failed to prove that he had married Smt. Raksha Parbhakar. Suffice it to say that on the evidence produced in the case, the petitioner has failed to prove the relationship of landlord and tenant between parties.
13. For the reasons recorded above, I find no merit in this revision petition and the same is dismissed with costs. Counsel fee Rs. 300/-.
R.M.S-Petition dismissed.