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2000 DIGILAW 16 (PNJ)

Vijay Kumar Goyal And Ors. v. Kailash Nath

2000-01-11

V.S.AGGARWAL

body2000
Judgment V.S.Aggarwal, J. 1. The present revision petition is directed against the judgment of the learned Appellate Authority, Sirsa, dated 4.5.1998. By virtue of the impugned order, the learned Appellate Authority had set aside the order passed by the learned Rent Controller, Sirsa, dated 13.12.1993 and instead dismissed the petition for eviction. 2. The relevant facts are that Ram Kumar, predecessor-in-interest of the petitioners, had filed eviction petition against the respondent with respect to the property in question. It was asserted that a rent note dated 23.7.1986 was executed. The property in question was let out for residential purpose. The respondent in violation of the above-said rent note had started doing business in the suit premises in the name and style of M/s Durga Rubber Agency, Sirsa. The permission of petitioner has not been taken for use of the premises for commercial purposes. The respondent has installed boards by making holes in the premises. Other grounds of eviction had been taken but they do not survive for the purpose of the present revision petition. 3. The respondent contested the eviction petition. He denied that he has changed the user of the property. As per the respondent, he deals in the business of rubber/leather chappals. He secures the orders from various dealers. On the basis of those orders, the respondents supplies the goods to the dealers by purchasing the goods from various firms dealing in this business at Delhi, Agra and Jalandhar. The respondent does not sell any of the goods from the suit premises. He does not use the suit premises for commercial purposes. Right from the inception of the tenancy, the respondent and his members are residing therein. As regards placing of the boards, the respondent claimed that till date the petitioner had never objected to the placing of the board on the suit premises. 4. The learned Rent Controller had framed the issues and recorded the evidence. The learned Rent Controller on appreciation of the evidence held that the property in question was let out for residential purposes. Part of it is used for commercial purposes. An order, of eviction was, therefore, passed. 5. An appeal was preferred. The learned Appellate Authority held that the premises had three rooms, verandah, courtyard, latrine and bath-room. It was further held that major portion of one room is being used for residential purposes. Part of it is used for commercial purposes. An order, of eviction was, therefore, passed. 5. An appeal was preferred. The learned Appellate Authority held that the premises had three rooms, verandah, courtyard, latrine and bath-room. It was further held that major portion of one room is being used for residential purposes. Majority of the receipts reveal that the respondent was doing the business of chappals only in wholesale. Only sometimes some goods were stored in the suit premises but the said room even had a television. It was held that it part of the premises is used for commercial purposes, in that event, it will not amount to change of user from residential to commercial. It was further held that, in fact, there was no change of user and accordingly the petition for eviction was dismissed and the order of the learned Rent Controller was set aside. 6. Aggrieved by the same, present revision petition has been filed. 7. During the course of arguments, it was not disputed that in terms of the rent note which has been proved or otherwise, the property in question had been let to the respondent for residential purposes. 8. The first and the foremost question agitated was that at best if part of the premises is used for commercial purposes and rest is used for residential purpose, this will not amount to change of user. Learned counsel for the respondent in support of his argument relied upon a large number of precedents. In the case of Firm Himalyan Traders v. Narain Dass, (1966)68 P.L.R. 367, this Court was concerned with the corresponding similar provisions in the East Punjab Urban Rent Restriction Act, 1949. A similar argument as to whether user of a part of the premises contrary to the purpose of letting would amount to change of user or not had been advanced. The Court held that user of the part of the premises contrary to the purpose of letting would not amount to change of user and the findings returned were as under:- ".........According to Section 13(2)(ii) of the Act - "A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. The Court held that user of the part of the premises contrary to the purpose of letting would not amount to change of user and the findings returned were as under:- ".........According to Section 13(2)(ii) of the Act - "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 - (ii) that the tenant has after the commencement of this Act without the written consent of the landlord (a) transferred his right under the lease or sub-let the entire building or rented land or any portion thereof; or (b) used the building or rented land for a purpose other than for which it was leased,- the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land,- It is clear that if it was the intention of the Legislature that where a small part of the demised premises is not used for the purpose for which it has been let and that was to be the ground of ejectment, it would have used the same phraseology as in Section 13(2)(ii)(a) and then it would have used in Section 13(2)(ii)(b) also the words "any portion thereof. This it has not done. What it has done is that it has said that when the building is used for a purpose other than that for which it was leased and, therefore, unless the part so used can itself be described as a building, the building to which this part of the clause refers must be taken as a whole. So that user of one room as the godown does not come under Section 13(2)(ii)(b) of the Act. 9. The same question had been considered by this Court in the case of Dharam Chand v. Mathura Dass, (1982)84 P.L.R. 370. Herein, the shop was let to the tenant for a banking business. The tenant started using a small portion of the shop for residential purpose. A petition for eviction was filed under the East Punjab Urban Rent Restriction Act, 1949. It was held that if a small portion of the shop is used contrary to the initial purpose of letting, it will not amount to change or user. Thus, the eviction petition failed. A petition for eviction was filed under the East Punjab Urban Rent Restriction Act, 1949. It was held that if a small portion of the shop is used contrary to the initial purpose of letting, it will not amount to change or user. Thus, the eviction petition failed. But herein, the Court had applied dominant user as a guide-line. The findings returned in this regard are as under:- ".....There are no shops on that side. Under the circumstances, the dominant purpose of the demised premises is still the business which is being carried on by the tenant-petitioner. Moreover, there is evidence on the record that the tenant is 70 years old and is on weak eye-sight. For running the bakery business, the help of his other family members is necessary and, thus, his residence in the preemies in dispute is also required to run his bakery business satisfactorily. 10. A similar finding had been arrived at by this Court in the case of Inder Singh v. Kalu Ram and Anr., (1965)67 P.L.R. 58. It was concluded that change of user of a part of building will not make the ground of eviction available to the landlord. 11. On behalf of the petitioners, however, strong reliance was placed on the decisions of the Supreme Court in the case of Bishamber Dass Kohli (dead) by LRs. v. Smt. Satya Bhalla, (1993-1)103 P.L.R. 402 (S.C.). In the cited case, the suit property had been let solely for residential purpose. The husband of the tenant was a lawyer. He established his office without the written consent of the landlord in a part of the building. The question under consideration was as to whether this would tantamount to change of user and ground of eviction under the East Punjab Urban Rent Restriction Act would be available or not? The Supreme Court held that there was change of user and allowed the petition for eviction. The findings of the Supreme Court read as under: "Shri Mahajan contended that to constitute the ground under Section 13(12)(ii)(b), the change in user should be in respect of at least a substantial part of the building if not the entire building. The comparison of Sub-clause (b) and Sub-clause (a) shows that the omission of the word entire before the word building in Sub-clause (b) when the word entire has been used before the word building in Sub-clause (a) is deliberate. The comparison of Sub-clause (b) and Sub-clause (a) shows that the omission of the word entire before the word building in Sub-clause (b) when the word entire has been used before the word building in Sub-clause (a) is deliberate. For this reason, the change in user of the building required to constitute the ground under Sub-clause (b) need not be of the entire building, the word entire being deliberately omitted in Sub-clause (b). Faced with this difficulty, Shri Mahajan submitted that the change of user should be of a substantial part of the building let out even though not of the entire building. This argument also cannot be accepted in this context. The definitions in Section 2 of the Act show that even though a scheduled building continues to be a residential building as defined in Section 2(g), a residential building of which even a part is used for a scheduled purpose, becomes and is called a scheduled building when user of the building is significant or the criterion......" 12. It is true that this was a decision under the East Punjab Urban Rent Restriction Act. It has to be remembered that so far as the present ground of eviction is concerned, the words are identical. Under Section 13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act, 1949, the ground of eviction read as under- "13(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) xx xx xx xx xx. (ii) that the tenant has after the commencement of this Act without the written consent of the landlord- (a) xx xx xx xx xx. (b) used the building or rented land for a purpose other than that for which it was leased, or 13. Under Section 13(2)(ii)(b) of the Haryana Urban (Control of Rent and Eviction) Act, 1973, the words are also identical and it is being reproduced hereunder for the sake of facility. "13(2) A landlord who seeks to evict his tenant shall apply to the Controller for direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application is satisfied.- (i) xx xx xx xx xx. "13(2) A landlord who seeks to evict his tenant shall apply to the Controller for direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application is satisfied.- (i) xx xx xx xx xx. (ii) that the tenant has after the commencement of the 1949 Act, without the written consent of the landlord- (a) xx xx xx xx xx. (b) used the building of rented land for a purpose other than that for which it was leased, or" 14. A perusal of both the relevant provisions show that both are identical in nature. Thus, the reasoning given in Bishamber Dass Kohlis case (supra) necessarily must apply and the argument that if part of the premises is used contrary to the purpose of letting, the ground of eviction will not i.e. available must fail to the ground. It must be held, therefore, that on this short ground the petition as such could not be dismissed. 15. Confronted with that position, the learned counsel appearing on behalf of the respondent contended that even if there was any such user contrary to the purpose of letting, the petition had been filed after many years of the said user. Thus, the principle of waiver would hit the case of the petitioners. In the case of D.C. Qswal v. V.K. Subbiah and Ors., A.I.R. 1992 S.C. 184. In the cited case, the premises were let for residential purpose. For seven years the change of user continued. No petition was filed nor any objections were raised. It was held that this tantamount to acceptance of change of user by the landlord. 16. There is no necessity to go into the said controversy. The reason being that in the written statement filed there was no plea of waiver taken. Even before the learned Appellate Authority it had not been agitated. It has not been alleged that there is conscious abandonment of the right. In the absence of any such fact, it cannot be held that the petition can fail. Further discussion, therefore, is totally unnecessary. 17. Yet another argument advanced was that the landlord took certain other grounds which were false and, therefore, he cannot be believed. On this ground also the plea has to be rejected. In the absence of any such fact, it cannot be held that the petition can fail. Further discussion, therefore, is totally unnecessary. 17. Yet another argument advanced was that the landlord took certain other grounds which were false and, therefore, he cannot be believed. On this ground also the plea has to be rejected. If a particular plea does not find favour with the Court and there are more than one grounds available, necessarily the Controller and the Appellate Authority have to consider each ground on its merit unless the finding on one ground has its reflection on the other. Merely because on one ground the landlord has failed will not permit the Controller to draw an inference against the landlord unless it is permitted in law. Consequently, this contention being without merit is rejected. 18. The main dispute here has been as to whether the user of the property has been changed or not. The plea of the respondent, as already referred to above, has been that the property in question was let and is being used (or residential purpose. It was denied that the respondent has changed the user or started business in the premises under the name and style of M/s Durga Rubber Agencies. The respondents case was that he deals in the business of rubber/leather chappals or shoes. He secures orders from various dealers and supplies the goods to the dealers. He does not sell any goods in the suit premises in wholesale or in retail. 19. The evidence on the record establishes that three rooms had been let to the respondent. The respondent had been storing some articles in the one room. Admittedly, boards had been placed in front of the house indicating the nature of the business. This fact has not been disputed that the boards had been placed. On one board it has been mentioned that leather chappals are sold here in retail as well as in wholesale. A Local Commissioner had been appointed and even he found that in a part of the premises, namely, the said room, business was being conducted. 20. Even the Sales Tax No. of the respondent is from the address of the said premises. In different vouchers produced on the record by the respondent, the address of the said premises has been given. Seemingly, the respondent does not have any other place of business. 20. Even the Sales Tax No. of the respondent is from the address of the said premises. In different vouchers produced on the record by the respondent, the address of the said premises has been given. Seemingly, the respondent does not have any other place of business. All these factors clearly lead to conclude that it must be held that business was being transacted from one of the rooms of the suit premises. 21. In that event, respondents learned counsel urged that the dominant purpose of user remained to be residential and consequently there was no change of user. Reliance was placed on the decision of this Court in the case of Jodha Ram v. Hari Chand, 1986 Rent Control Reporter 123. In the cited cased, the tenant was residing in residential premises. He was doing the business of supply of polythene bags. He obtained orders from customers and supplied the bags. There was no evidence that the customers visited the premises or machinery was installed. It was held that it will not amount to change of user. As is apparent from the facts, this was a decision confined to the peculiar facts of the said case. Herein, keeping in view the totality of the facts, namely, placing of board; sales tax number from the suit premises; and storing of goods in the suit premises, it has already been held that the one room is being used for commercial purpose. Therefore, the ratio decidendi of the abovesaid decision of this Court in the case of Kishan Chand of Amritsar v. Sham Dass of Amritsar, 1984 Haryana Rent Reporter 599, will not come to the rescue of the respondent. Herein also, only a sign board had been placed but no sale took place. The tenant was a hawker. It was felt that there was not change of user. The decision against must be taken to be confined to the facts of the said case. 22. The argument of predominant user will not be of much avail. It may be available in the facts of a particular case where looking at the totality of the circumstances the user can be said to be the same. Herein, as noted above, one room was being used for commercial purpose. Thus, it is patent that the user was changed from the original purpose of letting. It may be available in the facts of a particular case where looking at the totality of the circumstances the user can be said to be the same. Herein, as noted above, one room was being used for commercial purpose. Thus, it is patent that the user was changed from the original purpose of letting. Since there is a change of user, the tenant must be held to be liable to be evicted. 23. For these reasons, the revision petition is allowed and the impugned judgment is set aside. The respondent is granted three months time to vacate the suit premises.