judgement:
Appeal No. 131 of 1993.
From the Judgment and Order dated 17.12.1991 of the Himachal Pradesh High Court in Civil Revision No. 210 of 1990.
P.P. Rao and Ashok K. Mahajan for the Appellants.
D.D. Thakur, N.N. Bhat, E.C. Agrawala, A.V. Palli and Ms. Purnima Bhat for the Respondent.
The Judgment of the Court was delivered by YOGESHWAR DAYAL J.
Special leave granted.
With the consent of learned counsel for the parties, the appeal itself was heard.
The respondent is a tenant at the rate of Rs. 183.33 per month in the premises in dispute i.e. Shop No. 50, The Mall Shimla.
On 7th March, 1983, late Smt.
Dhani Devi, Predecessor in interest of appellant No. 2 and Shri Madan Mohan, appellant No.1, filed an application for eviction of the respondent on various grounds.
One of the grounds on which the eviction was claimed was non payment of rent.
It was stated in eviction petition that the respondent was in arrears of rent with effect from 1.3.1980 to 28.2.1983.
The Rent Controller on 29.7.1986 passed an order of eviction on the ground of non payment of arrears of rent.
The operative part of the said order is as under: "In the tight of my finding on issue No.1 above, the application is allowed on the ground of non payment of arrears of rent and the petition fails on other grounds.
However, the respondent shall not be evicted from the premises in question if he pays to the petitioner or deposit in this court a sum of Rs. 6,600, being arrears of rent from 1.3.1980 to 28.2.1983 @ 2,200 p.a. plus interest thereon @ 6% p.a.
amounting to Rs. 609.39, upto 28.2.1983and further interest on Rs. 6,600/ @ 6% p.a.
from 1.3.1983 till 28.8.1986 plus costs assessed at Rs. 100 within a period of 30 days from today. ' On 13.8.1986 the respondent deposited a sum of Rs. 8,500 in the court of the Rent Controller, Shimla.
According to the appellants, decree holders, the amount due inclusive of interest and costs upto 29.7.1986 was Rs. 8,661.29 and till the date of deposit it worked out to Rs. 8,677.79 if the 113 interest was to be calculated at the ordered rate till 13.8.1986.
According to the appellants the amount deposited was not in accordance with the order of the ejectment dated 29th July, 1986 and was short, and they filed the execution petition before the Rent Controller seeking possession of the suit premises.
On the execution petition being opposed, the Rent Controller framed the following two issues: "(a) Whether the tender made by the respondent of the rent amount is short as alleged? (b) Relief" By an order dated 18.5.1990 the Rent Controller while deciding issue No. 1 held that the tender made by the respondent was short to the tune of Rs. 161.29.
However, while deciding issue No.2, the Rent Controller allowed 15 days ' time from the date of the order for deposit of the said amount.
The appellants being aggrieved by the order of the Rent Controller dated 18.5.1990 filed revision petition in the High Court.
It was submitted on behalf of the appellants that the executing court had no jurisdiction to extend the time for making good the deficiency of.
161.29 inasmuch as since period of 30 days has been fixed by the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as 'the Act ') itself, the court could not either enlarge or abridge this period.
By the impugned judgment dated 17.12.1991, the High Court dismissed the revision petition.
The High Court while interpreting the words "amount due" occurring in the third proviso to Section 14(2) (i) of the Act held that these words referred to arrears of rent only and do not include interest and costs.
It will be noticed that neither of the parties had challenged the order 29.7.1986 by which the order of eviction was passed on the ground of non payment of rent against the respondent but the respondent had been given the liberty of avoiding eviction provided he deposited the amounts as stated in the order within the period of 30days from the date of the said order.
Before the High Court it was submitted on behalf of the appellants 114 that the executing court had no jurisdiction to extend the time to make good the deficiency in the amount as directed by the order dated 29.7.1986.
It was submitted on behalf of the appellants that since the period of 30 days had been fixed in the Act itself the court could not enlarge or abridge this period.
The High Court agreed with this submission but posed a question for itself, whether short fall of Rs. 161.29 which had been ordered to be deposited constitutes arrears of rent or interest and costs.
While following an earlier decision of the same High Court reported as Om Parkash vs Sarla Kumari & Ors., 1991 (1) Sim.
L.C. 45 interpreted the word "amount due" occurring in the third proviso to Section 14(2)(i) of the Act wherein it had been held that in order to save eviction the tenant is required to deposit only arrears of rent due at the time of filing application for eviction and not arrears of rent together with interest and costs within the statutory period of 30 days from the date of eviction order.
After answering the question the High Court took the view that the deficiency of Rs. 161.29 pertains to interest and costs.
So far as the arrears of rent which amountedto Rs. 6,600 for the period in question i.e. from 1.3.1980 to 28.3.1983 at the rate of Rs. 2,200 p.a. is concerned, it had been deposited within 30days.
In view of this finding the High Court was of the view that the respondent was not liable to be evicted.
High Court also held that the order of the executing court extending time to deposit Rs. 161.29 in pursuance of its order dated 29.7.1986 is of no consequence.
The relevant part of Section 14 of the Act may be noticed: '14.
Eviction of tenant (1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decre passed before or after the commencement of this Act or otherwise, whether before or after the termination of the tenancy, except in accordance with the provisions of this Act.
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf.
If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied (i) that the tenant has not paid or tendered the rent due from him in respect of the building or rented land within fifteen days 115 after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable: Provided that if the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest at the rate of 9 per cent per annum on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within time aforesaid: Provided further that if the arrears pertain to the period prior to the appointed day, the rate of interest shall be calculated at the rate of 6 per cent per annum: Provided further that the tenant against whom the Controller has made an order for eviction on the ground of non payment of rent due from him, shall not be evicted as a result of his order, if the tenant pays the amount due within a period of 30 days from the date of order; or (ii).
; or (iii) . ; or (iV).
; or (v). ; the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application:" A reading of the aforesaid relevant part of the Section shows that sub section (1) of Section 14 creates a ban against the eviction of a tenant except in accordance with the provisions of the Act.
The ban is liable to be lifted.
Sub section (2) of Section 14 provides the circumstances in which the ban is partially lifted.
It contemplates that where an eviction petition is filed, inter alia, on the ground of non payment of rent by the landlord, 116 the Controller has to be satisfied that the tenant has neither paid nor tendered the rent in the circumstances mentioned in clause (i) of sub section (2) of Section 14.
He has to arrive at this satisfaction after giving a reasonable opportunity of showing cause against it to the tenant.
But there may be cases where the tenant, on being given notice of such an application for eviction, may like to contest or not to contest the application.
The tenant is given the first chance to save himself from eviction as provided in the first proviso to clause (i) of sub section (2) of Section 14.
This first proviso contemplates that the tenant may on the first hearing of the application for ejectment pay or tender in court the rent and interest at the rate mentioned in the proviso on such arrears together with the cost of application assessed by the Controller and in that case, the tenant is deemed to have duly paid or tendered the rent within the time as contemplated by clause (i) of sub section (2) of Section 14.
Where the tenant does not avail of this opportunity of depositing as contemplated by the first proviso and waits for an ultimate decision of the application for eviction on the ground of non payment of rent, the Controller has to decide it and while deciding, the Controller has to find whether the ground contained in clause (i) of sub section (2) of Section 14 has been made out or not.
If the Controller finds that the ground as contemplated by clause (i) of sub section (2) of Section 14 is made out, he is required to pass an order of eviction on the ground of non payment of rent due from him.
A second opportunity to avoid eviction is provided by the third proviso to clause (i) of sub section (2) of Section 14.
But the second opportunity is provided after the order of eviction.
The benefit of avoiding eviction arises if the tenant pays the "amount due ' within the period of 30 days of the date of order.
The question is what is the meaning of the words 'amount due" occurring in the third proviso to clause (i) of sub section (2) of Section 14 of the Act.
It will be noticed that there is no provision in the Act for giving powers to the Controller to direct payment or deposit of 'Pendente lite" rent for each month during the pendency of the petition for eviction of the meant.
First Proviso to sub section (2) of section 14 shows that in order to show payment or valid tender as contemplated by clause (i) of sub section (2) of Section 14 by a tenant in default, he has to pay on the first date of hearing the arrears of rent alongwith interest and costs of the application 117 which are to be assessed by the Controller.
Surely where a tenant does not avail of the first opportunity and contests the eviction petition on the ground of non payment of arrears of rent and fails to show that he was not in default and court finds that the ground has been made out, an order of eviction has to follow.
Therefore, it does not stand to reason that such a tenant who contests a claim and fails to avoid order of eviction can still avoid it by merely paying the rent due till the date of the filing of the application for ejectment.
The third proviso to clause (i) of sub section (2) of Section 14 should also receive an interpretation which will safeguard the rights of both the landlord and tenant.
The "amount due" occurring in the third proviso in the context will mean the amount due on and upto the date of the order of eviction.
It will take into account not merely the arrears of rent which gave cause of action to file a petition for eviction but also include the rent which accumulated during the pendency of eviction peti tion as well.
If the tenant has been paying the rent during the pendency of the eviction petition to the landlord, the "amount due" will be only arrears which have not been paid.
The landlord, as per the scheme of the section, cannot be worse off vis a vis a tenant who was good enough to deposit in court the arrears of rent together with interest and costs on the first date of hearing.
If the interpretation given by the High Court is accepted the result would be that the tenant will be better off by avoiding to pay the arrears of rent with interest and costs on the first date of hearing and prefer suffering order of ejectment after contest and then merely offer the amount due as mentioned in the application for ejectment to avoid eviction.
This could not be the intention of the legislature.
In such cases it will be advisable if the Controller while passing the order of eviction on the ground specified in clause (i) of sub section (2) of Section 14 of the Act specifies the "amount due" till the date of the order and not merely leave it to the parties to contest it after passing of the order of eviction as to what was the amount due.
Surely the Rent Control Acts, no doubt, are measures to protect tenants from eviction except on certain specified grounds if found established.
the grounds are made out and subject to any further condition which may be provided in the Act, the tenants would suffer ejectment.
Again the protection given in the Acts is not to give licence for continuous litigation and bad blood.
118 Surely the legislature which made the Act could not have envisaged that after the parties finish off one round of litigation, the party should be relegated to another round of litigation for recovery of rent which accrued pendente lite.
Whatever protection Rent Acts give they do not give blanket protection for "non payment of rent".
This basic minimum has to be complied with by the tenants.
Rent Acts do not contemplate that if one takes a house on rent, he can continue to enjoy the same without payment of rent.
The order which the Controller passed was a composite order of eviction in the sense that if the tenant wanted to save himself from eviction, he had to comply with the order.
The order which was passed by the Controller cannot be said to be an order without jurisdiction.
It may be a right order; it may have been a wrong order.
It was not a nullity that the executing court will ignore it.
But at the stage when the execution application was filed, the rent Controller could not go behind its own order dated 29.7.1986.
If the Controller could not go behind its own order in execution proceedings, surely the High Court could not also go behind the order in revision against the order of Controller refusing execution.
It was not the appropriate stage for the High Court to examine what order ought to have been passed or to limit the efficacy of the order to its interpretation of the words "amount due" as mentioned in the third proviso to clause (i) of sub section (2) of Section 14.
The question which the High Court posed never arose.
Mr., Thakur, who appeared on behalf of the respondent submitted: (1)that sub section (2) of Section 14 gives discretion to the Controller to pass an order of eviction or not to pass an order of eviction even if the ground mentioned in clauses (i) to (v) of sub section (2) of Section 14 are made out; (2)that the order of eviction which was passed is not the final order in the sense that it is an interim order.
The final order is passed only after the expiry of 30 days if the tenant fails to avail of the second opportunity provided by the third proviso to clause (i) of sub section (2) of Section 14.
With due respect to learned counsel for the respondent we are not able to persuade ourselves to agree with either of his submissions.
It is true that sub section (2) uses the expression "the Controller may make an order 119 directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application".
It will be noticed that the Controller is required to dismiss the eviction application if he is not satisfied to the existence of any ground mentioned in clauses (i) to (v) of sub section (2) of Section 14 of the Act but where the Controller is satisfied with existence of any of the grounds mentioned in clauses (i) to (v) of sub section (2) of Section 14 the Controller has no discretion to decline to pass the order of eviction.
In the context in which the expression "may" is used it means "shall '.
Otherwise the section would read that "not only the Controller can reject an application when he is not satisfied with the ground but is also entitled to dismiss the application when he is so satisfied".
Such an intention cannot be attributed to the legislature particularly when the consequences of non satisfaction is expressly mentioned.
Even if the consequences of non satisfaction was not mentioned, we are of the view that the expression "may" occurring would still mean "shall" and all that would mean is that if the grounds are not made out, he will be bound to dismiss the application and if the grounds are made out, he is bound to pass the order of eviction.
If any other interpretation is given to the word "may" the section may itself become subject matter of challenge under Article 14 of the Constitution of India.
The Court shall avoid interpretation which make the provisions violative of the Constitution, if possible.
Coming to the second submission, as we have noticed earlier, subclause (i) of sub section (2) of Section 14 gives two opportunities to the tenant to avoid eviction.
The first opportunity to avoid eviction is if the tenant avails of the benefit of first proviso.
This opportunity is before the passing of the order of eviction.
The second opportunity is after the order of eviction.
The order, which is passed for eviction, is final in the sense as it is not an interim order.
If the tenant avails of the second opportunity as provided in the third proviso then the order of eviction becomes inexecutable and he saves himself from eviction.
Having found that the question posed and answered by the High Court was not relevant at the stage it was posed, namely during the execution proceedings and, therefore, the order is bad.
The validity of the order of the executing court dated 18th May, 1990 120 now needs to be considered.
The executing court, on consideration of the evidence recorded during the execution proceedings held that the judgment debtor, respondent, himself calculated the interest for the period 1.3.1983 to 28.2.1986 with the result that Rs. 161.29 ps. was deposited less by the judgment debtor and thought that it had power to extend the time for making up the deficiency and accordingly extended the time.
So far as the Himachal Pradesh High Court is concerned it has consistently taken the view that the executing court has no such power since the time is fixed by the statute.
R.S. Pathak, CJ.
(As His Lordship then was) in Shri Krishan Kumar vs Shri Gurbux Singh, while interpreting the third proviso to Section 14(2) (i) of the Act took the view thus: "It is apparent that the statute itself provides a period of 30 days from the date of the order for payment of rental arrears by the tenant.
On such payment, the statute declares, effect will not be given to the order of eviction.
The statute does not leave the determination of the period to the Rent Controller.
It is not open to the Rent Controller, when disposing of the petition for eviction, to make an order either abridging or enlarging the period of 30 days.
Indeed, the period having been determined by the statute itself, no order was necessary by the Rent Controller.
There being no power in the Rent Controller to vary the period mentioned in the statute, it is apparent that the order made by him in the execution proceedings is a nullity.
The Appellate Authority is right in the view taken by it." Mr. Thakur, learned counsel for the respondent, referred us to Shyamcharan Sharma vs Dharamdas, ; ; Miss Santosh Mehta vs Om Prakash and others; , ; Ram Murti vs Bhola Nath and another, and Ganesh Prasad Sah Kesari and another vs Lakshmi Narayan Guptta ; and submitted that this Court had, in spite of there being no express provisions to extend time taken the view that the Court has inherent powers to extended time for deposit of rent.
We are of the view that the reliance placed on these cases is wholly misplaced.
It may be noticed that the case of Shyamcharan Sharma (supra) related to the powers of the Court under Section 13(6) of the Madhya 121 Pradesh Accommodation Control Act, 1961.
This Act contemplated an eviction petition being filed under Section 12 and one of the grounds for eviction was for failure of the tenant to pay or tender within two months from the date of service of notice of demand of rent and Section 12 (3) thereof provided that the order of eviction will not be passed on this ground if the tenant makes the payment of deposit as required by Section 13.
Section 13(1) contemplated that when a suit has been instituted on any of the grounds against the tenant for his eviction, the tenant shall, within one month of the service of summons on him or within such further time as the court may, allow in this behalf, deposit in the court or pay to the landlord the arrears of rent and shall also continue to pay, month by month, the future rent as well.
Sub section (5) of Section 13 contemplated that if the deposit was made as contemplated by sub section (1) of Section 13 no order for recovery of possession should be made on the ground of default in the payment of rent.
Sub section (6) of Section 13 provide that if the tenant fails to pay any amount as required by Section 13 the court had the power to strike out the defence and proceed with the hearing of the suit.
While dealing with the powers under Section 13(6) of the said Act this Court took the view that the court had discretion to strike off the defence or not even if there is delay in depositing rent falling due after institution of suit for eviction.
The Court held : "In case of non deposit or non payment of rent by the tenant, Section 13(6) vests a discretion in the Court to order striking off the tenant 's defence against eviction; it neither clothes the landlord with an automatic right to an eviction decree nor visits the tenant with the penalty of such a decree being automatically passed.
If the court has the discretion to strike off or not to strike off the defence, it has further discretion to condone the default and extend the time for making the payment or deposit.
Such a discretion is a necessary implication of the discretion not to strike off the defence.
A different construction might lead to perversion of an object of the Act, namely 'adequate protection of the tenant '.
" An express provision for extending time for deposit or payment was not made in Section 13(1) because the consequences of non payment was proposed to be dealt with separately by Section 13(6) and the discretion to extend time is incidental to the discretion in the said section to strike 122 off or not to strike off the defence.
This view in Shyamcharan Sharma 's case (supra) was followed by this Court in Miss Santosh Mehta 's case (supra) and Ram Murti 's case (supra), which were the cases under the Delhi Rent Control Act, 1958, which also had the provisions similar to the Madhya Pradesh Accommodation Control Act, 1961 contemplating direction by the court to direct the tenant to pay the pendente lite rents which have become due and consequences for not complying with such directions.
Again the case of Genesh Prasad Sah Kesari (supra) related to the provisions for striking out the defence for failure of the tenant to deposit arrears of rent within 15 days of date of the courts 's order and this court again followed the decision in the case of Shyamcharan Sharma.
These cases have no application where the final orders were passed after satisfaction of the Controller for entitling the landlord to seek eviction on the grounds specified in the Act.
Mr. Thakur then submitted that this Court should not exercise its powers under Section 136 of the Constitution of India as the rent laws are meant for protection of the tenants.
Rent Control Acts are necessary social measures for protection of tenants.
The Rent Control Laws have tried to balance the equity.
Landlord is duty bound to satisfy the ground of eviction mentioned in various Rent Acts and if he does not satisfy, he cannot get the order of eviction merely because the Act restricts his rights.
There are certain Rent Acts which, even when a ground of eviction is satisfied, still confer powers on the Rent Controllers to consider the question of comparative hardship and it is only in those types of cases, if the Controller is satisfied, he can decline passing orders of eviction.
But if there is no such limitations, the Rent Controllers.
after the ground of eviction specified in the Act is made out, have no discretion to reject the application.
Once the order of eviction is passed, in the circumstances like the present, the executing court is duty bound to execute its orders.
No question of equity or hardship arises at that stage.
We are in complete agreement with the view expressed by R.S. Pathak, CJ (as His Lordship then was ) in the aforesaid case of Shri Krishan Kumar.
123 In the present case the tenant spared no efforts to harass the landlords.
After the order of eviction dated 29th July, 1986 the matter did not rest there.
The tenant again failed to pay the rent and the landlord was forced to file another eviction petition on the ground of non payment of rent for the period from 1.3.1983 to 30.11.1986 and it was only after the filing of the said eviction petition and in order to avoid eviction he deposited the rent.
The matter did not rest there even and it was only after the notice of the Special Leave Petition was issued in the present case that the tenant chose to pay the rent from 1.12.1986 after keeping it in arrears for practically six years.
In view of the aforesaid facts and circumstances of the case we set aside the impugned order of the High Court dated 17th May, 1991 and the order of the Rent Controller dated 18th May, 1990 and direct the Rent Controller, Shimla, to issue the warrants of possession for ejectment of the respondent from the premises in dispute and place the landlords/appellants in possession.
V.P.R. Appeal allowed.

summary:
The respondent was a tenant at the rate of Rs. 183.33 per month In the suit premises.
The respondent was in arrears of rent with effect from 13.1980 to 28.2.1983.
On 7th March, 1983, predecessor in interest of appellant No.2 and appellant No.1, flied an application for eviction of the respondent on the ground of non payment of rent.
The Rent Controller on 29.7.1986 passed an order of eviction.
On 13.8.1986 the respondent deposited a sum of Rs. 9,500 In the court of the Rent Controller.
According to the appellant the account deposited was not In according with the order dated 29th July 1986.
They filed the execution petition before the Rent Controller seeking possession of the suit premises.
The Rent Controller framed two Issues: (a) whether the tender made by the respondent of the rent amount was short as alleged , (b) Relief.
108 The Rent Controller held that the tender made by the respondent was short of Rs. 161.29.
While deciding issue No. 2, the Rent Controller allowed 15 days ' time to deposit the said amount.
The appellants being aggrieved by the order of the Rent Controller riled a revision petition in the High Court.
Before the High Court the appellants submitted that the executing court had no jurisdiction to extend the time for making good the deficiency of Rs. 161.29 inasmuch as since period of 30 days was fixed by the Himachal Pradesh Urban Rent Control Act, 1987 itself, the court could not either enlarge or abridge this period.
The High Court dismissed the revision petition, holding that the respondent was not liable to be evicted and also held that the order of the executing court extending time to deposit Rs. 161.29 in pursuance of its order dated 29.7.1986 was of no consequence.
The landlord riled this appeal by special leave against the High Court 's judgment.
The respondent tenant submitted that sub section (2) of Section 14 gave discretion to the Controller to pass an order of eviction or not to pass an order of eviction, even if the ground mentioned in clauses (i) to (v) of Sub section (2) of Section 14 were made out; that the order of eviction which was passed was not the final order in the sense that it was an interim order and the final order was passed only after the expiry of 30 days if the tenant failed to avail of the second opportunity provided by the third proviso to clause (i) of sub section (2) of Section 14.
Allowing the appeal of the landlord, this Court HELD:1.01.
The Rent Control Acts are measures to protect tenants from eviction except on certain specified grounds if found established.
Once the grounds are made out and subject to any further condition which may be provided in the Act, the tenants would suffer ejectment.
Again the protection given in the Acts is not to give licence for continuous litigation and bad blood.
[117H] 1.02.The legislature which made the Act could not have envisaged that after the parties finish of one round of litigation, the party should be 109 relegated to another round of litigation for recovery of rent which accrued pendente lite.
Whatever protection Rent Acts give, they do not give blanket protection for "non payment of rent '.
This basic minimum has to be complied with by the tenants.
Rent Acts do not contemplate that if one takes a house on rent, he can continue to enjoy the same without payment of rent.
[118A B] 1.03.Rent Control Acts are necessary social measures for protection of tenants.
The Rent Control Laws have tried to balance the equity.
Landlord is duty bound to satisfy the ground of eviction mentioned in various Rent Acts and if he does not satisfy, he cannot get the order of eviction merely because the Act restricts his rights.
[122E] 1.04.There are certain Rent Acts which, even when a ground of eviction is satisfied, still confer powers on the Rent Controller to consider the question of comparative hardship and it is only in those types of cases, if the Controller is satisfied, he cap decline passing orders of eviction.
But if there is no such limitations, the Rent Controllers after the ground of eviction specified in the Act is made out, have no discretion to reject the application.
Once the order of eviction is passed the executing court is duty bound to execute its orders.
No question of equity or hardship arises at that stage.
[122F G] 2.01.There is no provision in the Act for giving powers to the Controller to direct payment or deposit of "pendente lite" rent for each month during the pendency of the petition for eviction of the tenant.
First Proviso to sub section (2) of Section 14 shows that in order to show payment or valid tender as contemplated by clause (i) of sub section (2) of Section 14 by a tenant in default, he has to pay on the first date of bearing the arrears of rent alongwith interest and costs of the application which are to be assessed by the Controller.
[116G H] 2.02.Sub clause (i) of sub section (2) of Section 14 gives two opportunities to the tenant to avoid eviction.
Ile first opportunity to avoid eviction is if the tenant avails of the benefit of first proviso.
This opportunity is before the passing of the order of eviction.
The second opportunity is after the order of eviction.
The order which is passed for eviction, is final in the sense as it is not an interim order.
If the tenant avails of the second opportunity as provided in the third proviso then the order of eviction becomes inexecutable and he saves himself from eviction.
[119G] 110 2.03.The Controller is required to dismiss the eviction application if he is not satisfied to the existence of any ground mentioned in clauses (i) to (v) of sub section (2) of Section 14 of the Act but where the Controller is satisfied with existence of any of the grounds mentioned in clauses (1) to (v) of sub section (2) of Section 14 the Controller has no discretion to decline to pass the order of eviction.
[119B] 2.04.The order which the Controller passed was a composite order of eviction in the sense that if the tenant wanted to save himself from eviction, he had to comply with the order.
The order which was passed by the Controller cannot be said to be an order without jurisdiction.
It may be a right order, it may have been a wrong order.
It was not a nullity that the executing court will ignore it.
But at the stage when the execution application was riled, the Rent Controller could not go behind its own order dated 29.7.1986.
[118C] 2.05.If the Controller could not go behind Its own order in execution proceedings, the High Court could not also go behind the order in revision against the order of Controller refusing execution.
It was not the appropriate stage for the High Court to examine what order ought to have been passed or to limit the efficacy of the order to its interpretation of the words "amount due" as mentioned in the third proviso to clause (i) of subsection (2) of Section 14.
[118D E] 2.06.The landlord, as per the scheme of the section, cannot be worse off vis a vis a tenant who was good enough to deposit in court the arrears of rent together with interest and costs on the first date of hearing.
[117D] 2.07.In the present case the tenant spared no efforts to harass the landlords.
After the order of eviction dated 29th July, 1986 the matter did not rest there.
The tenant again failed to pay the rent and the landlord was forced to file another eviction petition on the ground of non payment of rent for the period from 1.3.1983 to 30.11.1986 and it was only after the filing of the said eviction petition and in order to avoid eviction he deposited the rent.
It was only after the notice of the Special Leave Petition was issued, the tenant chose to pay the rent from 1.12.1986 after keeping it in arrears for practically six years.
[123A B] Om Parkash vs Sarla Kumari & Ors., 1991 (1) Sim.
L.C. 45, referred to.
111 Shri Krishnan Kumar vs Shri Gurbux Singh, , approved.
Shyamcharan Sharma vs Daramdas, ; ; Miss Santosh Mehta vs Om Prakash and others; , ; Ram Murti vs Bhola Nath and another, [1984] 3 SCC Ill and Ganesh Prasad Sah Kesari and another vs Lakshmi Naryan Gupta; , , distinguished.
3.01.The 'amount due" occurring in the third proviso in the context will mean the amount due on and upto the date of the order of eviction.
It will take into account not merely the arrears of rent which gave cause of action to file a petition for eviction but also include the rent which accumulated during the pendency of eviction petition as well.
If the tenant has been paying the rent during the pendency of the eviction petition to the landlord, the 'amount due" will be only arrears which have not been paid.
[117C D] 3.02.It will be advisable if the Controller while passing the order of eviction on the ground specified in clause (1) of sub section (2) of Section 14 of the Act specifies the 'amount due" till the date of the order and not merely leave it to the parties to contest it after passing of the order of eviction as to what was the amount due.
[117F] 3.03.In the context in which the expression "may ' is used it means .shall".
Otherwise the section would read that 'got only the Controller can reject an application when he is not satisfied with the ground but is also entitled to dismiss the application when he is so satisfied.
" Such an intention cannot be attributed to the legislature particularly when the consequences of non satisfaction is expressly mentioned.
Even if the consequences of non satisfaction was not mentioned, the expression .may ' occurring would still mean "shall" and all that would mean Is that if the grounds are not made out, he will be bound to dismiss the application and If the grounds are made out, he is bound to pass the order of eviction.
If any other interpretation Is given to the word "may" the section may itself become subject matter of challenge under Article 14 of the Constitution of India.
The Court shall avoid interpretation which make the provisions violative of the Constitution if possible.
[117C F] 112


judgement:
Appeal No. 5086 of 1985.
From the Judgment and Order dated 31.1.1985 of the Punjab and Haryana High Court in Civil Revision No. 1847 of 1984.
A.B. Rohtagi, R.C. Mishra and Dr. Meera Aggarwal for the Appellant.
M.S. Gujaral and R.S. Sodhi for the Respondents.
The Judgment of the Court was delivered by ' VERMA, J.
The appellant, Gulraj Singh Grewal, took the suit premises situate in Ludhiana on monthly rent of Rs. 800 from respondent No. 1, Dr. Harbans Singh, in March 1980.
Respondent No. 2, Dr. Ravinder Singh, is son of respondent No. 1, Dr. Harbans Singh.
Both the respondents are medical practitioners.
The respondents filed a petition for eviction of the appellant tenant on three grounds, namely, personal need of the respondents under Section 13(3) (a) (i) (a), change of user under section 13(2) (ii) (b) and impairment of value and utility of the rented building under section 13(2) (iii) of the East Punjab Urban Rent Restriction Act, 1948.
The appellant contested the petition denying the existence of any of these grounds for eviction.
The Rent Controller dismissed the petition holding that none of the three grounds had been proved.
On appeal by the respondents, the appellate authority held that the personal need of respondent No. 2, Dr. Ravinder Singh, one of the landlords, was proved and the ground of change of user of the rented building by the appellant had also been proved.
The third ground relating to impairment of value and utility of the rented building was rejected.
The appellate authority further held that the building though let out for residential purpose was used by the appellant, a consultant engineer, partly for his profession on account of which it had become 153 a 'scheduled building ' as defined in Section 2(h) of the Act and, therefore, the ground for eviction based on personal need was not available for evicting the tenant from a 'scheduled building.
However, an order of eviction was made on the ground of change of user of the rented building.
The appellant then preferred a revision to the High Court which has been dismissed the findings and order of eviction made by the appellate authority.
Hence, this appeal by special leave.
The submissions of Shri Avadh Behari, learned counsel for the appellant are several.
The first contention is that there was no change of user by the appellant tenant to justify the order of eviction on that ground.
The second submission is that the finding on the question of personal need of the landlord is erroneous.
The last submission is that no order of eviction can be made on the ground of personal need contained in section 13(3) (a) (i) (a) in respect of a 'scheduled building ' since that ground is available for eviction only from a 'residential building ' as defined in section 2(g) of the Act, a 'scheduled building ' defined in section 2(h) of the Act being a different kind of building.
In reply, Shri M.S. Gujral, learned counsel for the respondents submitted that the order of eviction is justified and there is no ground to interfere in this appeal.
His submission is that a 'scheduled building ' defined in section 2(h) continues to be a 'residential building ' as defined in section 2(g), so that the ground for eviction based on personal need contained in section 13(3) (a) (i) (a) is available in the present case.
He also submitted that the finding of fact relating to personal need of the landlord is not open to challenge.
His submission in the alternative is that in case a 'scheduled building ' is not 'residential building ', then the ground of change of user is available since the building was let out for residential purpose and its user has been changed unilaterally by the tenant without the consent of the landlord.
The first question for our decision is: whether learned counsel for the appellant is right in contending that a 'scheduled building ' is not a "residential building ' for the purpose of the ground of eviction contained in section 13(3) (a) (i) (a) ? In case it is held that this ground for eviction of the tenant is available in the present case and the finding of fact on the question of personal need of the landlord is not open to challenge, the order of eviction can be sustained on this ground alone and it is unnecessary to decide the question relating to the ground of change of user contained in section 13(2) (ii) (b) of the Act.
We would, therefore, consider 154 this question first.
Admittedly, the appellant is a consultant engineer and the suit premises, a 'building as defined in section ' '(a) of the Act, was let out to him solely for residential purpose.
He has been using it as his residence while a part thereof is used by him as his professional office without the consent of the landlord.
It is on the basis of use of a part of the building as appellant 's office that the appellant claims it to be a 'scheduled building ' as defined in section 2(h) of the Act.
Apart from the question of change of user which is a separate ground for eviction, the question is whether the suit premises being treated as a 'scheduled building, the ground for eviction contained in section 13(3) (a) (i) (a) is not available, that ground being available only in respect of a 'residential building ' as defined in section 2(g) of the Act.
The contention of learned counsel for the appellant is that the word 'scheduled ' which occurred along with 'residential ' in section 13(3) (a) (i) of the Act having been omitted by the amendment made in the principal Act in 1956, the obvious legislative intent is to exclude a 'scheduled building ' from the scope of that provision with the result that the grounds for eviction contained in section 13(3) (a) (i), of which personal need of the landlord is one, are not available for eviction of a tenant from ,scheduled building ' thereunder after that amendment.
To buttress this argument, learned counsel referred to section 4 of the principal Act and Section 13A, inserted therein by an amendment made in 1985, wherein the expression 'scheduled building ' is expressly used in addition to the expression 'residential building ' and the separate definition of 'scheduled building ' in section 2(h) while defining 'residential building ' in section 2(g) in the principal Act from the very inception.
The question is whether this contention can be accepted.
Before dealing with the above question, it would be appropriate to dispose of the challenge made to the finding of fact of landlord 's personal need, on which this question arises.
The finding on this question of fact recorded by the appellate authority has been affirmed by the High Court.
Can this finding be reopended now? Learned counsel for the appellant submitted that the personal need found proved is only of respondent No. 2, son of respondent No. 1, who did not enter the witness box and, as stated in an affidavit filed in this 155 Court, even he is carrying on his profession at a place about 25 kms, away from Ludhiana.
In our opinion, this finding of fact is unassailable.
The High Court has clearly observed that no meaningful argument could be advanced on behalf of the appellant to challenge this finding of the appellate authority.
Respondent No. 1 who is the father of respondent No. 2, has supported and proved the need of respondent No. 2, who also is a landlord.
The fact that for want of suitable accommodation in the city of Ludhiana, respondent No. 2 is at present carrying on his profession at some distance from Ludhiana is not sufficient to negative the landlord 's need.
In these circumstances, the non examination of respondent No. 2 also, when respondent No. 1 has examined himself and proved the need of the landlord, is immaterial and, at best, a matter relating only to appreciation of evidence, on which ground this finding of fact cannot be reopened.
This is more so when no serious challenge to this finding was made in the High Court.
We must, therefore, proceed on the basis that the personal need of the landlord is proved to make out the ground of eviction contained in section 13(3)(a)(i)(a) of the Act in case that ground of eviction is applicable to the suit premises treating it as a 'scheduled building.
In order to fully appreciate the arguments of learned counsel for the appellant, the legislative history would be useful.
The Punjab Urban Rent Restriction Act, 1941 was enacted to restrict the increase of rents on certain premises situated within the limits of urban areas in the Punjab.
That Act was primarily to control the increase of rents and did not relate to eviction of tenants.
Then came the Punjab Urban Rent Restriction Act, 1947 which was enacted to restrict the increase of rent of certain premises situated within the limits of urban areas and the eviction of tenants therefrom.
Provision was made in Section 4 of the Act for determination of fair rent, for which purpose 'non residential building ', 'residential building ' and 'scheduled building ' were treated as three different categories prescribing different formula for each of these three categories.
For this reason, separate definition of each of them was given in section 2 containing the definitions.
However, for the purpose of eviction, in section 13 (3), a 'residential building or a 'scheduled building ' were clubbed together and treated similarly by providing the same grounds for eviction while a 'non. residential building ' or 'rented land ' were clubbed together and provided for separately.
The scheme of the Act clearly shows that a 'residential building ' and a 'scheduled building ' were treated as different categories only for the determination of fair rent but were treated alike while prescrib 156 ing the grounds for eviction of a tenant therefrom.
The definition of 'scheduled building ' in section 2(h) of that Act also took care to provide that a 'scheduled building ' means a residential building which was being used partly for a specified purpose.
In this manner, the definition of a 'scheduled building ' given in the Act was in consonance with the scheme of the Act treating it differently from a 'residential building ' for the purpose of determination of fair rent and similarly for eviction of the tenant.
Then came the East Punjab Urban Rent Restriction Act, 1948 which repealed the 1947 Act and replaced it.
The same scheme was retained in the 1949 Act which is the principal Act for our purpose.
It is the relevant provisions of this Act, as amended from time to time, which are material for deciding the point raised by the appellant.
The East Punjab Urban Rent Restriction Act, 1948 (East Punjab Act No. 111 of 1948) was amended by the Amendment Acts of 1956, 1957, 1966 and 1985 whereby section 13 of the principal Act was amended and in 1985 the new section 13A was inserted.
It is the amendments made in section 13 at the principal Act providing for eviction of tenants which are material for our purpose.
The material provisions of the Act, including the amendments made in section 13 from time to time are mentioned hereafter.
In the principal Act as originally enacted, the material provisions are as under : '2.
Definitions.
In this Act, unless there is anything repugnant in the subject o r context, (a) 'building ' means any building or part of a building let for any purpose whether being actually used for that purpose or not, including any land, godowns out houses or furniture let therewith, but does not include a room in a hotel, hostel or boarding house; xxx xxx xxx (d) 'non residential building means a building being used solely for the purpose of business or trade; xxx xxx xxx (g) "residential building" means any building which is not a 157 non residential building; (h) "scheduled building means a residential building which is being used by a person engaged in one or more of the professions specified in the Schedule to this Act, partly for his business and partly for his residence; xxx xxx xxx "4.
Determination of fair rent. (1) The Controller shall on application by the tenant or landlord of a building or rented land fix the fair rent for such building or rented land after holding such inquiry as the Controller thinks fit.
(2) In fixing the fair rent under this section, the Controller may first fix a basic rent taking into consideration xxx xxx xxx (3) In fixing the fair rent of a residential building the Controller may allow.
If the basic rent xxx xxx xxx (4) In fixing the fair rent of a scheduled building the Controller may allow, if the basic rent xxx xxx xxx (5) In fixing the fair rent of a non residential building or rented land the Controller may allow, if the basic rent xxx xxx xxx '11.
Conversion of a residential building into a nonresidential building No person shall convert a residential building into a non residential building except with the permission in writing of the Controller." "13.
Eviction of tenants.
(1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement 158 of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section.
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf.
If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied (i). . . (ii)that the tenant has after the commencement of this Act without the written consent of the landlord (a). . . (b) used the building or rented land for a purpose other than that for which it was leased.
or (iii)that the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land, or the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application : Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed three months in the aggregate.
(3) (a) A landlord may apply to the Controller for an order directing tenant to put the landlord in possession (i) in the case of a residential or a scheduled building if (a) he requires it for his own occupation; 159 (b) he is not occupying another residential or a scheduled building, as the case may be, in the urban area concerned; and (c) he has not vacated such a building without sufficient cause after the commencement of this Act in the said urban area: (ii) in the case of a non residential building or rented land, if (a) he requires it for his own use; (b) he is not occupying in the urban area concerned for the purpose of his business any other such building or rented land, as the case may be, and xxx xxx xxx "19.
Penalties.
(1) If any person contravenes any of the provisions of sub section (2) of section 9, sub section (1) of section 10, section 11 or section 18, he shall be punishable with fine which may extend to one thousand rupees. ' The East Punjab Urban Rent Restriction (Amendment) Act, 1956 (Punjab Act No. 29 of 1956) amended section 13 in the following manner: 2.
Amendment of section 13 of East Punjab Act III of 1949.
In clause (a) of sub section (3) of section 13 of the East Punjab Urban Rent Restriction Act, 1949, hereinafter referred to as the principal Act (i) (a) In sub clause (i), the words 'or a scheduled" shall be omitted.
(b) In sub paragraph (b), the words "or a scheduled" and the words "as the case may be" shall be omitted.
(ii) (a) In sub clause (ii) the words 'a non residential building or ' shall be omitted.
(b) In sub paragaph (b), the words "building or" and the words Was the case may be ' shall be omitted" 160 (c) In sub paragraph (c), the words 'a building or" shall be omitted.
(iii)For sub clause (iii), the following shall be substituted, namely: (iii)In the case of any building or rented land, if he requires it to carry out any building work at the instance of the Govern ment or local authority or any improvement Trust under some improvement of development scheme or if it has become unsafe or unfit for the human habitation. (iv) In sub clause (iv), for the words 'any building", where they first occur, the words 'any residential building shall be sub stituted.
(v) In the second proviso, for the words "a residential a scheduled or non residential building or rented land ', the words "a residential building or rented land" shall be substituted.
Section 13 was again amended by the Punjab Urban Rent Restriction ,Amendment) Act, 1957 (Punjab Act No. 21 of 1957) as under '2.
Amendment of section 13 of the East Punjab Act No. 111 of 1949.
After clause (c) of sub paragraph (i) of paragraph (a) of sub section (3) of section 13 of the East Punjab Urban Rent Restriction Act, 1949, the following shall be added, namely : "(d) it was let to the tenant for use as a residence by reason of his being in the service or employment of the landlord, and the tenant has ceased, whether before or after the commencement of this Act, to be in such service or employment: Provided that where the tenant is a workman who has been discharged or dismissed by the landlord from his service or employment in contravention of the provisions of the Industrial Disputes Ad, 1947, he shall not be liable to be evicted until the competent authority under that Act confirms the order of discharge or made against him by the landlord." 161 Thereafter, the East Punjab Urban Rent Restriction (Amendment) Act, 1966 (Punjab Act No. 6 of 1966) further amended section 13 of the principal Act as under "2.
Amendment of section 13 of punjab Act 3 of 1949.
In section 13 of the East Punjab Urban Rent Restriction Act, 1949, (i) in sub section (3), (a) after sub paragraph (i) of paragraph.(a), the following sub paragraph shall be inserted, namely : "(i a) In the case of a residential building, if the landlord is a member of the armed forces of the Union of India and requires it for the occupation of his family and if he produces a certificate of the prescribed authority, referred to in section 7 of the , that he is serving under special conditions within the meaning of section 3 of that Act.
Explanation.
For the purposes of this sub paragraph (1) the certificate of the prescribed authority shall be conclusive evidence that the landlord is serving under special conditions; and (2) "family ' means such relations of the landlord as ordinarily five with him and are dependent upon him;"; (c) in the first proviso in paragraph (a), for the words "shall not be entitled, the words 'shall not, except under sub paragraph (i a), be entitled ' shall be substituted; and (c) after paragraph (b), the following new paragraph shall be added, namely : '(c) where an application is made under sub paragraph (i a) of paragraph (a), it shall be disposed of, as far as may be, within a period of one month and if the claim of the landlord is accepted, the Controller shall make an order 162 directing the tenant to put the landlord in possession of the building on a date to be specified in the order and such date shall not be later than fifteen days from the date of the order."; and (2)In sub section (4), for the words 'does not himself occupy it or, if possession, the words 'does not himself occupy it or, if possession was obtained by him for his family in pursuance of an order under sub paragraph (i a) of paragraph (a) of sub section (3), his family does not occupy the residential building, or, if possession" shall be substituted." Then the East Punjab Urban Rent Restriction (Amendment) Act, 1985 (Punjab Act No. 2 of 1985) further amended section 13 and inserted new section 13A in the principal Act as under 'Amendment of section 13 of Punjab Act 3 of 1949.
In the principal Act, in section 13, after sub section (4), the following sub section shall be inserted, namely : '(4 A) Where a tenant is evicted from a residential or scheduled building in pursuance of an order made under section 13 A and the specified landlord or, as the case may be, the widow, widower, child, grandchild or widowed daughter in law of such specified landlord : (a) does not occupy it for a continuous period of three months from the date of such eviction; or (b) within a period of three years from the date of such eviction of the tenant, lets out the whole or any part of such building, from which the tenant was evicted, to any person other than the tenant; such evicted tenant may apply to the Controller, for an order directing that the possession of the building shall be restored to him and the Controller shall make an order accordingly. ' Insertion of new section 13 A in Punjab Act 3 of 1949.
In the principal Act, after section 13, the following section shall 163 be inserted, namely: Right to recover immediate possession of residential or scheduled building to accrue to certain persons.
"13 A.
Where a specified landlord at any time, within one year prior to or within one yea after the date of his retirement or after his retirement but within one year of the date of commencement of the East Punjab Urban Rent Restriction (Amendment) Act, 1985, whichever is later, applies to the Controller alongwith a certificate from the authority competent to remove him from service indicating the date of his retirement and his affidavit to the affect that he does not own and possess any other suitable accommodation in the local area in which he intends to reside to recover possession of his residential building or scheduled building, as the case may be, for his own occupation, there shall accrue, on and from the date of such application to such specified landlord, notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force or in any contract (whether expressed or implied), custom or usage to the contrary, a right to recover immediately the on of such residential building or scheduled building or any part or parts of such building if it is let out in part or parts : Provided that in case of death of the specified landlord, the widow or widower of such specified landlord and in the case of death of such widow or widower, a child or a grandchild or a widowed daughter in law who was dependent upon such specified landlord at the time of his death shall be entitled to make an application under this section to the Controller, (a)in the case of death of such specified landlord, before the commencement of the East Punjab Urban Rent Restriction (Amendment) Act, 1985 within one year of such commencement: (b)In this case of death of such specified landlord, after such commencement, but before the date of his retirement, within one yew of the date of his death; 164 (c)in the case of death of such specified landlord, after such commencement and the date of his retirement, within one year of the date of such retirement; and on the date of such application the right to recover the possession of the residential building or scheduled building, as the case may be, which belonged to such specified landlord at the time of his death shall accrue to the applicant: Provided further that nothing in this section shall be so construed a. , conferring a right on any person to recover possession of more than one residential or scheduled building inclusive of any part or parts thereof if it is let out in part or parts: Provided further that the controller may give the tenant a reasonable period for putting the specified landlord or, as the case may be, the widow, widower, child, grandchild or widowed daughter in law in possession of the residential building or scheduled building, as the case may be, and may extend such time so as not to exceed three months in the aggregate.
Explanation.
For the purpose of this section the expression "retirement" means termination of service of a specified landlord otherwise than by resignation." Further by this Amendment Act of 1985, special procedure for disposal of applications under section 13A was prescribed and some other ancillary amendments were also made.
The definitions in clauses (a), (d), (g) and (h) of Section 2 and the material part of section 4 quoted above remain the same in the principal Act as originally enacted even after these amendments, section 13, in so far as it is material for the present case, as it stands amended in the above manner now reads as under: "13.
Eviction of tenants (1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the 165 provisions of this section, or in pursuance of an order made under section 13 of the Punjab Urban Rent Restriction Act, 1947, as subsequently amended.
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf.
If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied (i). . . (ii) that the tenant has after the commencement of this Act without the written consent of the landlord (a). . . (b) used the building or rented land for a purpose other than that for which it was leased, or (iii) that the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land, or xxx XXK xxx (3) (a) A landlord may apply to the controller for an order directing the tenant to put the landlord in possession (i) in the case of a residential building if (a) he requires it for his own occupation; (b) he is not occupying an other residential building, in the urban area concerned; and xxx xxx xxx (i a) in the case of a residential building, if the landlord is a member of the armed forces of the Union of India and requires it for the occupation of his family and if he produces a certificate of the prescribed authority, referred to in section 7 of the , that he is serving under 166 special conditions within the meaning of section 3 of that Act.
XXK xxx xxx (ii) in the case of rented land, if (a) he requires it for his own use: (b) he is not occupying in the urban area concerned for the purpose of his business any other such rented land; and (c) he has not vacated such rented land without sufficient cause after the commencement of this Act, in the urban area concerned: xxx xxx xxx (iv) in the case of any residential building, if he requires it for use as an office, or consulting room by his son who intends to start practice as a lawyer or as a "registered practitioner" within the meaning of that expression as used in the Punjab Medical Registration Act, 1916, or for the residence of his son who is married, if (a) his son as aforesaid is not occupying in the urban area concerned any other building for use as office, consulting room or residence, as the case may be; and (b) his son as aforesaid has not vacated such a building without sufficient cause after the commencement of this Act, in the urban area concerned xxx xxx xxx The main argument of learned counsel for the appellant is that omission of the words "or a scheduled ' after the word 'residential ' in section 13(3) (a) (i) by the 1956 Amendment while using those words in addition to the word 'residential in section 13A, subsequently inserted in 1985, is a clear indication that the ground of eviction contained in section 13(3) (A) (i) (a) of _personal need of the landlord.is no longer available to landlords in general after the 1956 Amendment, awn though a more expeditious remedy on that ground has been provided by 13A from 167 1985 to the category of specified landlords alone.
The retention of the separate definition of 'scheduled building ' in section 2(h) and use of that expression elsewhere in the Act, including section 4 and section 13, is referred in support of this submission.
The question is whether this construction is proper.
In section 2 which contains the definitions, clause (a) defines 'building '.
Clause (d) then defines 'non residential building ' to mean a building being used solely for the purpose of business or trade.
Thus, to be a non residential building, it must be used solely for the purpose of business or trade.
Clause (g) defines 'residential building ' to mean any building which is not a non residential building.
These definitions make it clear that all buildings are divided into two categories : 'non residential ' and 'residential '.
Buildings used solely for the purpose of business or trade are 'non residential ' and the remaining buildings are all 'residential '.
Accordingly, no building to which the Act applies is outside the classification of 'non residential ' and 'residential '.
Then comes clause (h) which defines 'scheduled building ' to mean a residential building which is being used partly for a scheduled purpose.
The definition of 'scheduled building ' in clause (h) itself makes it clear that it is a residential building as defined in clause (g) with the qualification that such a residential building is one which is used partly for a specified purpose.
In other words, 'scheduled building ' as defined in clause (h) is merely a kind of 'residential building ' as defined in clause (g), its characteristic being its part user for a scheduled purpose.
The reason to defined 'scheduled building ' separately in clause (h) is also evident from some provisions of the Act itself.
The Act makes a distinction for the purpose of determination of fair rent between a residential building which is being used partly for a scheduled purpose and is, therefore, treated as a 'scheduled building ' and the remaining residential buildings which are not so used.
This is clear from the scheme of section 4 itself providing for determination of fair rent.
This is also clear from the fact that from the definition of 'building ' given in section 2(a), the only category excluded is a 'non residential building ' as defined in section 2(d) for the purpose of section 2(g) and not also 'scheduled building ' defined in section 2(h) and in section 2(h), a 'scheduled building" is defined to mean a residential building used partly for a scheduled purpose.
A separate definition of 'scheduled building ' in clause (h) while making it 168 clear therein that it means a residential building used partly for a specified purpose does not, therefore, indicate that a scheduled building ceases to be a residential building or is a category of building separate from a residential building for the purpose of eviction of tenants in the scheme of section 13 of the Act.
This is the only manner in which a harmonious construction can be made of these provisions.
The question now is of the effect of the 1956 Amendment which omitted the words 'or a scheduled ' in section 13(3) as indicated earlier.
The Statement of Objects and Reasons of the Amendment Act of 1956 clearly says that the provision allowing eviction on the ground of personal need has been misused by certain landlords and according to the Act applicable to Delhi the tenants of industrial and commercial premises cannot be ejected on the ground of personal need, while in the Punjab, such tenants can be evicted therefrom also on the ground of personal need.
To avoid hardship to such tenants, it was considered necessary that the tenants of non residential property in the Punjab should be placed at par with tenants of such property in Delhi.
Thus, the object of this enactment was to equate the Punjab tenants with Delhi tenants and exclude the ground of landlord 's personal need for eviction of tenants of non residential property.
To achieve this object deletion was made of the words other than 'residential ' from section 13(3) providing for eviction of tenants from buildings on the ground of landlord 's personal need.
Obviously, in view of the definition of 'scheduled building ' in section 2(h) being clear to indicate that 'scheduled building ' is a 'residential building, retention of the words ,or a scheduled ' after 'residential ' was considered superfluous while omitting the words 'non residential building ' in other parts of section 13(3) relating to the ground of personal need for eviction of the tenants from buildings.
Subsequently, in section 13A, when inserted by 1985 Amendment, the word 'scheduled ' was also used after 'residential ', may be, in view of the controversy like the present raised on the basis of the 1956 Amendment, to avoid any such controversy therein.
That does not, however, mean that section 13 which must be construed in the manner indicated by us should be read differently for that reason.
In fact, insertion of section 13A further reinforces the view we have taken.
There would be no occasion to provide an expeditious remedy for eviction of tenants of a category of 169 landlords and to also provide for a special summary procedure for them unless the remedy of eviction on the ground of personal need was already available generally to the landlords in section 13.
It is significant that section 13 was also amended by the 1985 Amendment by inserting sub section (4 A) therein as a result of insertion of the new section 13A in the principal Act.
Thus, the 1985 Amendment itself shows that section 13A is not a separate and distinct provision but has to be read along with section 13 of the principal Act forming a part of the general scheme contained in section 13 for eviction of tenants on the ground of personal need from buildings which are not non residential.
The construction we have made of section 13(3)(a)(i), as it stood after the 1956 Amendment, is the only construction which can be made to harmonise with the definitions in section 2 which continue to remain as originally enacted and the other provisions of the Act which have been referred.
The contention of learned counsel for the appellant on this point is, therefore, rejected.
The result of the above discussion is that the respondent landlord 's personal need being found proved, the ground of eviction contained in section 13(3) (a) (i) (a) is available and the order of eviction passed against the appellant can be sustained on this ground alone.
The construction made by the High Court of Section 13(3) (a) (i) that it does not apply to a scheduled building is, therefore, erroneous.
The only surviving question is the availability of the ground of change of user contained in section 13(2) (ii) (b) on which the order of eviction has been passed by the High Court.
In view of the above conclusion reached by us that the ground in section 13(3)(a)(i)(a) is made out, the consideration of this question in the present case appears unnecessary.
We have considered and decided that question in a connected matter Bishamber Das Kohli (Dead) by Lrs.
vs Smt.
Satya Bhalla.
However, a brief reference to the general principle may be apposite.
If the express terms of lease restrict the user solely for purpose of residence, then use of any part thereof for even a scheduled purpose without the written consent of the landlord may amount to use of the building for a purpose other than that for which it was leased.
That, however, is a question of fact in each case.
In that case while the ground of eviction in section 13(3)(a)(i)(a) would remain available to the landlord 170 for eviction of the tanant, in view of the express covenant against user of any part of the residential building even for a scheduled purpose.
It may make available also the ground of change of user under section 13(2) (ii) (b) of the Act.
In the present case, it is unnecessary to go into this further question since the order of eviction can be sustained on the ground contained in section 13(3)(a)(i)(a) alone as already indicated.
Consequently, the appeal is dismissed with costs.
Counsel 's fee Rs. 3,000.
U.R. Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellant took the suit premises situate in Ludhiana on a monthly rent of Rs. 800 from respondent 1.
Both the respondents are medical practitioners.
The respondent riled a petition for eviction of the appellant tenant on three grounds: their personal need under Section 13(3)(a)(i)(a); change of user under Section 13(2)(ii)(b) and impairment of the value and utility of the rented building under Section 13(2) (iii) of the East Punjab Urban Rent Restriction Act 1948.
The Rent Controller dismissed the petition.
The appellate authority held that the personal need of the respondents and the ground of change of user was proved.
Since the building though let out to the tenant for a residential purpose was used partly for his profession and had become a 'scheduled building ' under Section 2(h), he could not be evicted on the ground of personal need.
The order of eviction was, however, made on the ground of change of user of the building.
Ile High Court on revision affirmed the finding and order of eviction made by the appellate authority.
150 In the Supreme Court, it was argued for the appellant that there was no change of user to justify the order of eviction on that ground and that the finding on the question of personal need was erroneous.
Relying on legislative intent evidenced in amendments to the Act, it was further contended that no order of eviction can be made on the ground of personal need contained in Section 13(3)(a)(i)(a) in respect of a 'scheduled building ' since that ground is available for eviction only from a residential building.
The omission of the words 'or a scheduled ' after the word 'residential ' in Section 13 (3) (a) (i) (a) in 1956 and their addition in Section 13A in 1985 were referred to advance the argument The respondents submitted that there was no ground to interfere with the order of eviction; that 'scheduled building ' In section 2(h) continues to be a 'residential building ' in section 2(g) and that personal need in section 13(3) (a) (i) (a) is available as a ground for eviction; and that the finding of fact relating to personal need of the landlord in not open to challenge.
In the alternative, if a "scheduled building ' is not a "residential building" then the ground of change of user, unilaterally was available.
Dismissing the appeal, this Court HELD: 1.
The finding of fact of personal need is unassailable.
That respondent 2 is carrying on his profession at some distance from Ludhiana is not sufficient to negative the landlords ' need.
[155B] Non examination of respondent 2 is immaterial when respondent 1 has examined himself and proved the need of the landlord; it Is at best a matter relating to appreciation of evidence, on which ground this finding of fact cannot be assailed particularly when it was not seriously challenged in the High Court.
(pp.6/7) [155C] 2.
All buildings are divided into two categories: "non residential" and "residential".
Building, * used for the purpose of business or trade are " non residential" and the remaining buildings are all 'residential '.
This is clear from the definitions in section 2(a), (d) and (g).
(pp.23/24) [167D] 3. 'Scheduled building as defined in section 2(h) is merely a kind of 'residential building, as defined in section 2(g), its characteristic being its part user for a scheduled purpose.
(p.24) [167E] 151 4. 'The Act makes a distinction between a residential building which is being partly used for a scheduled purpose, i.e. a scheduled building, for the purpose of determination of fair rent.
A separate definition of 'scheduled building ' in clause (h) while making it clear therein that it means a residential building used partly for a specific purpose does not, therefore indicate that a scheduled building ceases to be a residential building or is a category of building separate from a residential building for the purpose of eviction of tenants in the scheme of section 13 of the Act This is the only manner in which a harmonious construction can be made of these provisions.
(pp.24/25) [167H, 168A] 5.
The object of the 1956 amendment was to equate the Punjab tenants with the Delhi tenants and exclude the ground of landlord 's personal need for eviction of tenants of non residential property.
Obviously the definition of 'scheduled building ' in section 2(h) clearly indicating that scheduled building is residential building, the words 'or a Scheduled" after "residential" were considered superfluous.
The use of the word "scheduled" after "residential ' in section 13A inserted in 1985 may have been used to avoid any controversy like the present raised on the basis of the 1956 Amendment.
(p.26) [168D E] 6.
Section 13A which provides for an expeditious remedy is not a separate distinct provision but has to be read along with section 13 of the principal Act forming a part of the general scheme contained in section 13 for eviction of tenants on the ground of personal need from buildings which are not non residential.
(p.27) [168H] 7.
This construction of section 13(3) (a) (i) as it stood after the 1956 amendment, is the only construction which can be made to harmonise with the definitions in section 2.
(p.27) [169C] 8.
The question of change of user is not necessary to be considered.
However, the general principle is that if the express terms of lease restrict the user solely for purpose of residence, then use of any part thereof for even a scheduled purpose without the written consent of the landlord may amount to use of the building for a purpose other than that for which it was leased.
That, however, is a question of fact in each case.
In that case while the ground of eviction in section 13 (3) (a) (i) (a) would remain available to the landlord for eviction of the tenant, in view of the express 152 covenant against user of any part of the residential building even for a scheduled purpose, it may make available also the ground of change of user under section 13(2) (ii) (b) of the Act.
(pp.28/29) [169G 170A] Bishamber Dass Kohli (dead) by L.rs.
vs Smt.
Satya Bhalla, referred to.