Om Prakash Jain v. Chiranji Lal — 1979 DIGILAW 115 (ALL)

ORDER V.K. Mehrotra, J. - Defendant, Om Prakash Jain, who is the applicant before me in a revision under Section 115 C.P.C. is a tenant in a portion of house No. 83, Ranjit Puri, Old Machhli Bazar, Meerut Gantt. A decree for his eviction from these premises was granted by the Judge, Small Causes, Meerut in a suit filed by the plaintiff-opposite parties. The basis upon which the eviction of the applicant . from the premises in suit was sought was that having been let in the premises as a tenant, for residing therein, the applicant used it in a manner inconsistent with the purposes for which the premises were let out to him. It was found by the trial Judge that the applicant had taken the house for residential purposes but later stored hosiery goods in the bigger of the two rooms in his tenancy and, thus, used it for wholesale business of hosiery. The use to which the premises were thus being put being inconsistent with the purpose for which the applicant was let into the premises, the applicant was held liable for ejectment. The trial Judge noticed the admission made by the applicant in his deposition that "he brought hosiery goods from Delhi and distributed them to retailers on bicycle". The further admission noticed by the trial Judge was to the effect that for some time the applicant had affixed a board in the premises in suit showing the name of Amar Nath Textiles which was, however, removed when the Cantonment Board sent a notice objecting to it. The trial Judge, oil the finding recorded by him, concluded that the applicant had used the premises in his tenancy inconsistently with the purpose for which it was created and as noticed earlier, decreed the suit, inter alia, for the ejectment of the applicant. 2. Aggrieved by the decree of the trial Judge, the applicant assailed the same in a revision under Section 25 of the Provincial Small Cause Courts Act. The learned Additional District Judge, Meerut, who heard the aforesaid revision, agreed with the trial Judge and affirmed the decree. 2. Aggrieved by the decree of the trial Judge, the applicant assailed the same in a revision under Section 25 of the Provincial Small Cause Courts Act. The learned Additional District Judge, Meerut, who heard the aforesaid revision, agreed with the trial Judge and affirmed the decree. The learned Judge was of the opinion that the finding recorded by the trial Judge on the facts of the case that the applicant had changed the purpose of tenancy and that he had used the major portion of the accommodation let out to him for residential purposes for his commercial purposes which was inconsistent with the purpose for which the accommodation was let out to him, was correct. The applicant has now come up to this Court in the present revision under Section 115 C.P.C. 3. Appearing for the defendant-applicant, Sri Chand Kishore has contended that even on the facts as found by the trial Judge, it is clear that the applicant had not used the premises demised to him for a purpose either inconsistent with or different from the one for which he was let into the premises. His submission is that the mere fact that in the bigger of the two rooms under the tenancy of the applicant, hosiery goods were stored by the applicant, was not enough in law to hold that the applicant has used the premises for a purpose different from the residential purpose for which the demised premises had been given to him. Since, according to the submission, the courts below are patently wrong in their view that the applicant had made an inconsistent user or a user different from the one for which the premises had been let out to him, their decision cannot be upheld nor can the decree for ejectment be sustained for the trial Judge would have no jurisdiction to direct the eviction of the applicant unless, in law, the finding that the demised premises had been used for a purpose different from or inconsistent with the one for which they were let out to the applicant is sustained. 4. It is undisputed in the present case that the premises in suit were let out to the applicant for residential purposes. 4. It is undisputed in the present case that the premises in suit were let out to the applicant for residential purposes. The finding that of the two rooms under the tenancy of the applicant, the bigger room was being utilised by the applicant for storing hosiery goods, is a finding of fact recorded by the trial Judge on appreciation of evidence on record. The trial Judge has, as noticed above, taken note of the admission made by the applicant in his deposition in court that he was storing hosiery goods in that room and was supplying it on a bicycle to retail dealers in those goods. The trial Judge has not, however, found that the statement aforesaid of the defendant was false. He had also not found that any customers were approaching the applicant in the premises in suit or that any activity other than the one deposed to by the applicant was being carried out by him in the premises in suit. The question, therefore, which requires consideration is whether in this state of facts, the conclusion drawn by the trial Judge and affirmed by the learned Additional District Judge that the applicant was using the premises in suit for a purpose either inconsistent with or different from the one for which he was let into the premises is sound. In case, it is held that the conclusion of the courts below in this respect is not sound in law, it is obvious that the decree for the ejectment of the applicant will have to be set aside. That would be for the reason that the jurisdiction of the trial Judge to direct the eviction of the applicant from the premises in suit could only be attracted when it was found that the applicant had used the premises let out to him for a purpose inconsistent with or different from the one for which he was let into them. That is the only part of Section 20 (2) of U. P. Act No. XIII of 1972 which is being invoked by the plaintiff-opposite party for seeking the ejectment of the applicant. The suit premises are indisputedly governed by the provisions of that Act. 5. The question of inconsistent or different user of the demised premises must necessarily depend upon the fact of each case. The suit premises are indisputedly governed by the provisions of that Act. 5. The question of inconsistent or different user of the demised premises must necessarily depend upon the fact of each case. However, the facts have to be tested with reference to some principle of law in order to arrive at a conclusion about an inconsistent or a different user of the demised premises from the one for which they are leased out. One of the tests which has been accepted by the courts for examining this question is the test of dominant purpose. Where it has to be determined as to whether the premises have been let out for a residential or a non-residential purpose, it would be necessary to find out whether the dominant purpose for -which the lessee was let into them was residential or non-residential. That question, however, need not detain us in the present case for it is a matter of admission between the parties that the premises in suit were let out to the applicant for residential purpose. 6. The next question which, however, needs determination is whether the user of the demised premises has, in any manner, been deviated from the one for which it was so demised. The test of principal user would, therefore, have to be kept in mind for determining that question. It is obvious that the test of principal user has to be with reference to the user of the premises in suit. Sri Chand Kishore is, in my opinion, right in his submission that when it has to be determined that the premises are being, used for carrying on business, what has to be kept in the forefront is to find out whether any business activity is being, carried on in the premises themselves. If no business activity is carried on in the premises themselves, it is obvious that the principal user of the demised premises is not for business and remains unchanged from the one for which they were let out. 7. The further question that, therefore, needs consideration is whether mere storage of hosiery goods can be treated to be the user of the premises in suit for business purposes, inconsistent with the residential purpose for which, they were let out to the applicant. 7. The further question that, therefore, needs consideration is whether mere storage of hosiery goods can be treated to be the user of the premises in suit for business purposes, inconsistent with the residential purpose for which, they were let out to the applicant. The courts below have found as a fact that apart from the bigger of the two rooms let out to the applicant, the remaining premises are being used for residential purposes. By way of user for business purposes, what has, thus, been found by the courts below is that the applicant , has been storing hosiery goods in that bigger room. In Jugraj Jain v. T. R. A Pillai ((1959) 2 Mad LJ 240), a learned single Judge of a Madras High Court took the view that the storing by the tenant, carrying on the business of pawnbroker, of valuable articles pawned with him did not amount to carrying on of business in those premises. In the words of the learned Judge himself, the gist of what he had held was: "That even though a house is taken for purely residential purposes, some occupational and profit-making activities by the residents therein, in a small portion un-ostentatiously, and without running a shop or causing no nuisance, are inevitable and permissible in these days of complex civilisation. Thus, a Judge may keep his case records and dictate his-judgments in a portion of his residential house; a lawyer may advise his clients in a room of his house; a doctor may give consultation to his clients in a room of his house; an astrologer may give his-predictions to his clients in a room of his house; a barber may have his select and urgent clients in a room of his house; a pappadom-maker can make pappadom in a room of his house; provided the portions so used form only a fraction of the entire premises and does not alter the-nature of the premises from residential to non-residential much less effect any structural alterations. So too an occupant of non-residential premises can use a small portion equally unostentatiously and informally for the residence of a watchman or a clerk to safeguard his wares, and that man may cook, eat and sleep in the premises without any permission from the landlord, provided the nature of the premises is not altered, much less structurally. So too an occupant of non-residential premises can use a small portion equally unostentatiously and informally for the residence of a watchman or a clerk to safeguard his wares, and that man may cook, eat and sleep in the premises without any permission from the landlord, provided the nature of the premises is not altered, much less structurally. It is impossible to contend in these days that residential premises should only be used for living, eating, sleeping, praying and reading scriptures and other non-money yielding pursuits, or, that non-residential premises should be left without a clerk or servant on the premises with the danger of all the wares being carried away by thieves and burglars." 8. The observations with which I respectfully agree clearly amount to this the basic purpose of a premises let out for residence is not altered merely because in a portion thereof some profit making professional activity is carried on by the tenant or without carrying on any actual commercial transactions therein, some goods in which the tenant is carrying on business are stored therein. The nature of activity which is being carried on in the premises themselves is the real test for determination whether a change in the purpose for which the premises were demised to the tenant has been brought about by him. In Ram Swarup v. Ram Niwas (1968 All LJ 289), K. B. Asthana, J. (as he then was), took the view that the repairing of radios by the tenant in one of the rooms of the house let out to him for residential purposes cannot be said to be a use for purpose inconsistent with the residential purpose for which the accommodation was let out to him. 9. The submission of Sri B. D. Tripathi, appearing for the plaintiff-opposite parties that every case where the demised premises are used for a purpose other than the one for which they are let out is one of inconsistent with (sic-use) is too widely stated. The acceptance of the submission would subject every tenant of a house let out to him for residential purpose to the risk of ejectment therefrom even though as an incident of his residence therein, he is found to have been using the premises in part not strictly for his residential purpose alone. The acceptance of the submission would subject every tenant of a house let out to him for residential purpose to the risk of ejectment therefrom even though as an incident of his residence therein, he is found to have been using the premises in part not strictly for his residential purpose alone. The decision in the cases relied upon by Sri Tripathi really do not help him on the facts ofjhe instant case. In Custodian Evacuee Property v. Simla Banking and Industrial Company (AIR 1951 Punj 434); Binda Prasad v. Pt. Bihari (AIR 1936 Oudh 316) and Bhagwan Rai v. Jaddu Raj Rai ( AIR 1926 All 66 ), indisputably an activity different from the one for which they were let out was being undertaken in the premises in question. That is not the situation in the instant case, for, as observed earlier, the trial Judge has not found that any activity apart from storage of hosiery goods was being undertaken by the defendant-applicant in the suit premises. 10. Sri Tripathi has also contended that the conclusion of the trial Judge, which has not been disturbed by the learned Additional District Judge, of the applicant using the premises in dispute for business purposes is a conclusion of fact and that the courts below cannot be said to have committed any error of jurisdiction or of any material irregularity in procedure to enable the defendant-applicant to seek the setting aside of their decision by this Court in the present application in revision. This submission, in my opinion, cannot be accepted in view of the facts of the instant case. The only conclusion which may be said to amount to a conclusion based upon the evidence on record is to the effect that in one of the rooms in the demised premises the applicant was storing hosiery goods and continued to reside in the remaining portions thereof. The further conclusion from these facts that the applicant was putting the premises to a use different from the one for which he had been let into the premises and was carrying on business activity therein is not one which can be said to be a conclusion only of facts. The further conclusion from these facts that the applicant was putting the premises to a use different from the one for which he had been let into the premises and was carrying on business activity therein is not one which can be said to be a conclusion only of facts. Besides, as held by me earlier, the trial Judge cannot be said to have the jurisdiction to direct the eviction of the applicant from the premises in suit except for one of the reasons mentioned in sub-sec. (2) of Section 29 of U. P. Act No. XIII of 1972 and that in case it is found that in law the present case does not fall in the category of the cases enumerated in that sub-section, the decree for the eviction of the applicant would become one without jurisdiction. 11. In sum, I am of opinion that the trial Judge committed an error of jurisdiction within the meaning of Section 115 C. P. C. when, in the circumstances of the instant case, he concluded that the applicant had put the demised premises to a user inconsistent with the residential purpose for which he was let into them. The decree for the ejectment, therefore, of the applicant from the premises in dispute cannot be upheld. 12. In the result, the application in revision is allowed. The decree for the ejectment of the applicant from the premises in suit is set aside. The plaintiffs suit to that extent shall stand dismissed. The parties will, however, bear their own costs.