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2001 DIGILAW 1256 (PNJ)

Seth Shambhu Dayal v. M/s Ganesh Iron Store

2001-11-08

R.L.ANAND

body2001
Judgment R.L.Anand, J. 1. This is a landlords revision and has been directed against the judgment dated 11.8.1988 passed by the appellate authority, Ludhiana, who, allowed the appeal of the tenant and dismissed the cross-objections of the landlord as a result of which the ejectment application filed by the landlord under Section 13 of the East Punjab Urban Rent Restriction Act No. 3 of 1949 was dismissed. The appellate authority left the parties to bear their own costs. 2. The brief facts of the case are that Shambhu Dayal deceased, represented by his legal representatives Smt. Sohag Wanti and others, filed the ejectment application under Section 13 of the aforesaid Act against the tenant M/s Ganesh Iron Store and others, respondents for their eviction from the property in disputed numbered as Industrial Shed No. 495, Industrial Area, B, Ludhiana which was given on monthly rent of Rs. 350/- for a period of four months starting from 28.5.1965 to 27.9.1965 and in lieu of the tenancy M/s Ganesh Iron Store, executed a rent note on 6.6.1995 in favour of the original landlord Seth Shambhu Dayal (deceased). The entire property consisted of a boundary wall, four rooms, one shed and a hand pump but out of these three rooms, with the shed, were let out to respondent No. 1. There was a verandah in front of these three rooms which also forms part of the tenancy. It is alleged by the landlord that the tenant took the property on rent for the purpose of sale of iron rods but he has changed the user of the property. It was further alleged by the landlord that respondent has neither paid nor tendered the arrears of rent with effect from 1.4.1981 besides house tax. He has committed such acts which materially impaired the value and utility of the demised premises. The respondent-tenant without the written consent of the landlord has raised a roof of the shed by fixing iron tresses. He has also laid flooring and demolished the old latrine and constructed new flush latrine. He has removed a part of the wall between two rooms and opened a door connecting the two rooms as shown by mark A in the plan attached with the plaint. He has also hammered angle iron in the north-east corner at the junction of room and verandah. He has removed a part of the wall between two rooms and opened a door connecting the two rooms as shown by mark A in the plan attached with the plaint. He has also hammered angle iron in the north-east corner at the junction of room and verandah. It was further alleged by the petitioner- landlord that respondent has sublet the premises and had parted the possession of the demised premises to respondents No. 2 to 6. Further maintaining that respondents are guilty for the change of user, the case set up by the landlord is that when the property was let out, it was let out for storage of iron rods and for the sale thereof. Now the tenant has started manufacturing nuts in the premises in dispute and for that purpose it has installed the iron press in the shed which was under construction when Engineer Shri B.C. Katyal visited the premises on 7.2.1981. It has also been alleged by the petitioner that respondent has illegally taken a power connection in the premises for which underground iron has been laid. 3. Notice of the ejectment petition was given to the respondents. They filed the reply and denied the allegations. According to the respondent he has neither impaired the value and utility of the property nor he has changed the user of the property. The property was let out to him for running commercial and manufacturing activities. He is maintaining the same business. He has not sublet the premises. He is still in control of the demised premised and in these circumstances, no case for ejectment is made out. 4. From the pleadings of the parties, the learned Rent Controller framed the following issues on 15.2.1983 :- 1. Whether the respondents are liable to ejectment on the grounds mentioned in para No. 2 of the petition ? OPPA 2. Whether the petition is signed by the petitioner ? OPR 3. Whether the ejectment petition is not maintainable ? OPR 4. Whether the petition is bad for misjoinder of the parties ? OPR 5. Relief. 5. An additional issue was also framed by the learned Rent Controller on 18.1.1984 to the following effect : "Whether the present applicants have no locus standi to continue and to proceed with the present application as claimed in preliminary objection No. 1 of the amended reply ? OPR 6. OPR 5. Relief. 5. An additional issue was also framed by the learned Rent Controller on 18.1.1984 to the following effect : "Whether the present applicants have no locus standi to continue and to proceed with the present application as claimed in preliminary objection No. 1 of the amended reply ? OPR 6. Parties led voluminous evidence before the learned Rent Controller both oral as well documentary and issue No. 1 was decided in favour of the landlord and against the respondents and it was observed by the learned Rent Controller that there is a change of user on the part of the respondent with respect to the demised premises and therefore, he is liable to be evicted on that ground. The Rent Controller took the view that with the commencement of the manufacturing activities by making the cycle spare parts, the respondent has started an industry which is totally different from the main dominant purpose of the tenancy. He is liable to be evicted on the other grounds of ejectment, that is, subletting and materially impairing the value and utility of the property. The learned Rent Controller did not find favour with the landlord on the other grounds of ejectment. Finally the learned Rent Controller vide order dated 29.8.1985 ordered the ejectment of the respondent only on the ground of the change of user and respondents were directed to evict the demised premises within three months from the date of the passing of the order. Both landlord and tenant were not satisfied with the order of the learned Rent Controller. Tenant filed the appeal under Section 50 of the said Act, whereas, the landlord filed the cross-objections and finally, the learned appellate authority vide impugned judgment dated 11.8.88, allowed the appeal of the tenant by dismissing the cross-objections of the landlord. 7. Resultantly, the petition under section 13 of the Rent Restriction Act was dismissed. In this manner, this is a revision by the landlord. 8. 7. Resultantly, the petition under section 13 of the Rent Restriction Act was dismissed. In this manner, this is a revision by the landlord. 8. During the pendency of this revision, the landlord filed an application under Order 41 Rule 27C.P.C. seeking permission of this court to place on record the certified copy of the plaint of Civil Suit No. 22 of 1979 titled Prem Chand Jindal v. Shabhu Dayal and it was prayed that through the certified copy the landlord wanted to show that when the suit was instituted by Shri Prem Chand Jindal, he categorically alleged that the tenant was using the demised premises for business as well as for residential purpose. He also alleged in this petition that a clear case of change of user is established. 9. Through this judgment I will dispose of the main revision as well as the application under Order 41 Rule 27 C.P.C. and first of all, I would like to give attention to the prayer made by the petitioner as to whether this Court should allow the application under Order 41 Rule 27 CPC or not ? 10. The present ejectment application was filed in 1982. The litigation continued before the Rent Controller for years together and finally the Rent Controller disposed of the matter on 29.8.1985. Thereafter the matter remained pending before the appellate authority and the appeal and the cross- objections were disposed of on 11.8.1988. The proposed additional evidence is prior to the date of the filing of the ejectment application. The initial onus was upon the landlord to show that the tenant has changed the letting purpose. The suit was instituted by Shri Prem Chand Jindal in the year 1979. The said suit was disposed of on 20.2.1979. Meaning thereby that the pendency of the suit was in the knowledge of the landlord. At no point of time the landlord took the efforts for placing on record the copy of the plaint of the earlier suit filed by Shri Prem Chand Jindal. We all know that additional evidence cannot be adduced in the appellate Court. The reading of Order 41 Rule 27 C.P.C. shows that it starts with a negative clause by clearly making a mention that no litigant has the right to lead additional evidence as a matter of right or course unless the case is fully covered by the exceptions of that order. The reading of Order 41 Rule 27 C.P.C. shows that it starts with a negative clause by clearly making a mention that no litigant has the right to lead additional evidence as a matter of right or course unless the case is fully covered by the exceptions of that order. Assuming for the sake of arguments that this Court would like to look into the plaint filed by Shri Prem Chand Jindal in the earlier suit, still I am of the opinion that the landlord will not be able to advance his case with regard to the change of user as I would try to depict in the subsequent portion of this judgment because the allegation of the plaintiff was that he was using the demised premises for business as well as for residential purpose. I may also make a mention that in the present ejectment application it is not the case of the landlord that the tenant is using the demised premises for residential purpose or that he has changed the user from commercial/business to residential purpose. Now, I have to see that what is the effect if the tenant has alleged in the earlier suit that he was using the demised premises for business purpose. 11. In these circumstances, I am inclined to dismiss the application under Order 41 Rule 27 C.P.C. as in my opinion, it is not going to serve any purpose for the disposal of the main revision. I can also only admit the additional evidence if it is necessary for the just decision of the case. I have just stated above that this document is not likely to advance the case of the petitioner. 12. Reverting to the merits of the revision, the learned counsel for the petitioner Shri Sudhir Mittal has made the following contentions for consideration. On the point of change of user, he submitted that the demised premises were let out to the tenant initially for a period of 4 months and, therefore, the intention of the parties i.e. of the landlord and the tenant could never be that the demised premises are being given on rent for manufacturing purposes. Elaborating this ground of change of user he submitted that the letting purpose of the tenancy was business activity. Elaborating this ground of change of user he submitted that the letting purpose of the tenancy was business activity. The tenant is permitted to take any business activity akin to the business which he started at the time of the inception of the tenancy but the tenant has switched over to the manufacturing activities by installing the electric connection and the power presses. He had started now manufacturing cycle spare parts and this amounts to a totally different trade which has nothing to do with the business which was started by the respondent, therefore, the respondent is liable to be evicted from the demised premises and the learned first appellate court has not rightly appreciated this aspect. He has cited several judgments which I will also deal in the subsequent portion of this judgment on this point. 13. On the contrary, the learned counsel appearing on behalf of the respondent Ms. Sweena Pannu submitted that there is no change of user. The letting purpose as contained in the rent note has given unfettered powers to the tenant to use the demised premises and so long the tenant is using it for business/commercial or the manufacturing purpose, it is not the violation. She submitted that agreement between the parties has to be respected. All the case law which has been cited at the bar by the learned counsel for the petitioner is distinguishable on the facts because is those cases the letting purpose was defined either in the rent note or by the attending circumstances. Supporting the judgment of the first appellate Court, the learned counsel for the respondent submitted that the demised premises are situated in the Industrial Estate of Ludhiana. It is in the nature of the shed and the very nature of the demised premises indicates that this type of premises can be used both for trading and for commercial activities including the manufacturing one and, therefore, there is no breach on the part of the tenant with regard to the terms of the tenancy. Resultantly, the judgment of the appellate authority should be maintained. 14. I have considered the rival contentions of the parties and with their assistance have gone through the record of this case and in my opinion, there is no force in the contention raised by the learned counsel for the petitioner. Ex. A.3 is the rent note. Resultantly, the judgment of the appellate authority should be maintained. 14. I have considered the rival contentions of the parties and with their assistance have gone through the record of this case and in my opinion, there is no force in the contention raised by the learned counsel for the petitioner. Ex. A.3 is the rent note. It is a contract between the parties and this contract has to be respected too. A reading of the same would show that the demised premises was let out initially for a period of four months starting from 28.5.65 up to 27.9.65 but it does not mean that through this contract it has to be inferred that the letting purpose was not manufacturing. We all know that if a tenure of rent note is fixed for one year it requires registration under Section 17 of the Registration Act. In order to avoid the registration, the tenant and the landlord invariably make averment in the rent note that premises in question is being let out for a period of 11 months or less so as to take it out from the provisions of Transfer of Property Act as well as from the provisions of Registration Act. When a written document is before us and when the rent note specifies that purpose of the tenancy we have to give respect to that agreement and arrangement between the parties and we cannot take into consideration any oral evidence which is against the contents of the document. Again reverting to the rent note Ex. A.3 it is clearly mentioned that the tenant has the right to use this property. It has not been mentioned in the rent note that the letting purpose will be only to run the sale and purchase business of iron rods. Rather the letting purpose is that industrial sheds can be used by the tenant along with three rooms and the vacant space in front of those rooms. It is also the admitted case of the parties that the industrial sheds rooms are situated in the industrial area where industrial, commercial and manufacturing activities go on. Therefore, by taking the attending circumstances into consideration, it has to be held that the letting purpose was the use of the industrial shed and the rooms and it was not given for a specific purpose. Therefore, by taking the attending circumstances into consideration, it has to be held that the letting purpose was the use of the industrial shed and the rooms and it was not given for a specific purpose. So long the tenant is using it for his business which is very wide term and there can be no infringement on the part of the tenant with regard to the provision of Rent Restriction Act. The rent note has given unfettered powers and discretion to the tenant to use the premises. There is no negative clause in the rent note that the tenant cannot run the manufacturing activities, therefore, I am not inclined to accede this contention of the counsel for the petitioner that the tenant is liable to be evicted. 15. Ours is a society which is expanding. We are making developments in industrial trade business and in manufacturing activities. If businessman for the flourishment of his business activities even commences some manufacturing process by taking an electric connection or by installing press machine, and so long those machines are akin and have a direct nexus with the principal trade of the tenant, such activities will not constitute a change of user. In order to constitute a change of user we will have to see the entire back- ground of a case which will depend from facts of facts of each case. If the new activity of the tenant is totally extraneous, foreign and had no connection with the principal business, in such a situation, we can say that tenant has changed the nature of the demised premises but if it is the extension of the business or expansion of business and in order to achieve that object he had also started manufacturing activities it will not constitute a change of user. It is the case of the landlord itself that the tenant was running the business of storing and selling the iron rods etc. If that raw and basic material is being exploited by the tenant in order to prepare some spare parts of the bicycle with the help of a power it will not constitute a change of user. 16. It is the case of the landlord itself that the tenant was running the business of storing and selling the iron rods etc. If that raw and basic material is being exploited by the tenant in order to prepare some spare parts of the bicycle with the help of a power it will not constitute a change of user. 16. Faced with this difficulty, learned counsel for the petitioner relied upon 1992(1) RCR 525 (P&H) : 1992(1) PLR 480, Kanwaljit Singh v. Harbans Kaur; 2000(2) PLR 176, Punam Chand v. Kailash Chand, 2000(1) PLR 512 : 2000(1) RCR 381 (SC), Jagdish Lal v. Parma Nand, 2000(1) RCR 278 (SC) : 2000(3) Supreme Court Cases 723, M. Arul Jothi and another v. Lajja Bal (deceased) and another, 1988(1) RCR 444 (SC) : 1988(2) Supreme Court Cases 474, Mohan Lal v. Jai Bhagwan, 1996(1) RCR 38 (SC) : 1995 Supp (4) Supreme Court Cases 167, Patel Chandulal v. Rabri Prabhati Harji, 1993(1) RCR 259 (SC) : 1993(1) Supreme Court Cases 566, Bishambar Dass Kohli v. Satya Bhalla; 1984(1) RCR 214 (P&H) : 1984(1) RLR 224, Ram Parkash v. Nathu Ram. 17. I have gone through all the citations very carefully and am of the opinion that the ratio laid down by the Honble Judges in these citations are not applicable to the facts in hand. Before I apply any ratio either of the High Court or of the Honble Supreme Court, I must be clear in my mind about the facts. If the facts are totally distinguishable from the case law cited at the bar, no help can be given to the litigant who has cited the judgments which are off the track. Every case will be governed firstly by the written contract which has been entered into between the parties and if there is no written contract then I will have to see what was the initial purpose of the tenancy and to what extent that has been flouted. What are the attending circumstances of the demised premises and in which type of area those demised premises are situated. In all the cases cited above the purpose of tenancy was well defined either it was written or it was by the circumstances proved. What are the attending circumstances of the demised premises and in which type of area those demised premises are situated. In all the cases cited above the purpose of tenancy was well defined either it was written or it was by the circumstances proved. In the present case also we have a written tenancy before us in which the word used is "Barai Istemal" which means that the tenant can use the property. No specific letting purpose has been mentioned as the demised premises are situated in the Industrial area where both manufacturing as well as trading activities go on including the storing of the goods in the godown which are installed in the industrial plots. Therefore, I am of the opinion that so long the tenant is adopting those very activities and there is no violation of the contract or the terms of the rent note. 18. Learned counsel appearing on behalf of the respondent relied upon 2000(2) RSJ 327 in which it was observed that if no specific purpose is proved the mere change of user from one will not make the ground of eviction available. As stated above, this ratio of the High Court can be acted upon in the present case because of the written covenant mentioned in the rent note Ex. A.3. In 1988(1) RCR 444 (SC) : 1988 S.C. 1034, Mohan Lal v. Jai Bhagwan it was observed that so long changed business is an allied business in expanding concept of departmental store, there is no mischief of change of user. In this cited case the shop was let out for carrying the business of English Liquor vend. The tenant changed over to general merchant business. It was observed by the Honble Supreme Court that this alleged change was not any mischief or detriment or impairment to the shop. Rather it is an expansion of the departmental store, therefore, the landlord is not entitled to the ejectment. 19. In this view of the matter I reject the first argument raised by the learned counsel for the petitioner when be tried to convince me that tenant is liable to be evicted on the ground of change of user. 20. Now, I consider the aspect whether the landlord has been able to make out a case of materially impairing the value and utility of the premises. Both the Courts below have gone against the landlord. 20. Now, I consider the aspect whether the landlord has been able to make out a case of materially impairing the value and utility of the premises. Both the Courts below have gone against the landlord. Repeatedly it has been held by the Honble Supreme Court that concurrent finding of fact cannot be disturbed in the revision when those findings of fact are based on proper appreciation of evidence. Before a landlord can succeed on the ground of ejectment it is incumbent upon him to establish that tenant has committed such acts which are likely to impair materially the value or utility of the building or the rented land. The minor acts of alleged impairment of the value utility of the property is not a ground for ejectment. It was so observed in 1995(1) RCR 440 (P&H) : 1995(2) All India Rent Control Journal 351, Bir Devinder Singh v. Mangat Ram. In AIR 1989 S.C. 758 : 1989(2) RCR(Rent) 331 (SC), Pal Singh v. Sunder Singh, it was again observed that finding of fact should not be interfered by the High Court at the revisional stage. Same was the observation of the Honble Supreme Court in 1987(4) Supreme Court Cases 161 : 1987(2) RCR(Rent) 311 (SC), Dipak Banerjee v. Lilabati Chakraborty. The learned counsel for the petitioner submitted by inviting my attention to the report of the building expert that it stands established that the tenant has materially impaired the value or utility of the building. He also invited my attention to the site plan Ex. A.5 and stated that the tenant has constructed a room at the point L, L.1, L.2 and L.3. He has switched over the laboratory from point B to point C. He has raised a pucca roof over the shed. Further he has constructed one room of the size of 15x9 inches x 12 x 9 inches on the corner of the Eastern portion of the space of the plot on which the industrial shed has been erected. My attention has also been invited to the statement of Mr. Katyal who appeared as PW-1 in order to prove the site plan. It was also argued by the learned counsel for the petitioner that the material impairment of value and utility has to be seen from the landlords point of view. 21. My attention has also been invited to the statement of Mr. Katyal who appeared as PW-1 in order to prove the site plan. It was also argued by the learned counsel for the petitioner that the material impairment of value and utility has to be seen from the landlords point of view. 21. I have given considerable thought to the submissions raised by the learned counsel for the petitioner and am of the opinion that this contention is devoid of any merit. There is nothing on record to show that what was the original position of the demised premises and what additions or alterations have been made by the tenant afterwards. Every minor change in the demised premises by the tenant will not constitute material impairment or utility of the demised premises. If tenant for his own facility has renovated the demised premises but without changing its shape or structure or its utility, it will not constitute material impairment of the value or utility of the premises. 22. The third submission raised by the learned counsel for the petitioner was that it is also proved on the record that the tenant had parted the possession of the property to the other respondents and it would amount to subletting. In order to constitute the subletting it is obligatory upon the landlord to establish that tenant had parted exclusive control and possession of the demised premises. It is well settled law that if the tenant has entered into any partnership it will constitute a subletting. It is equally true that landlord cannot prove the sub-letting by way of direct evidence because it is always a secret arrangement between the tenant and the sub-tenant but if a tenant has taken a loan from the Bank which has put a lock on the room where the pledged goods were kept it will not amount to a case of sub-letting because the control of the tenant still remains on the demised premises. The lock of the bank is only for the limited purpose to keep the security intact but there is no arrangement directly or indirectly between the tenant and the bank vide which it can be inferred that tenant has lost control of the demised premises. The lock of the bank is only for the limited purpose to keep the security intact but there is no arrangement directly or indirectly between the tenant and the bank vide which it can be inferred that tenant has lost control of the demised premises. Referring to the rent note, it may be mentioned that the demised premises were taken on rent by M/s Ganesh Iron Store, Ludhiana through Shri Prem Chand Thakar Dass, Kishan Chand and Shri Shayam Lal. Shri Prem Chand of course has admitted in his cross-examination that he is doing the Ghee business at Ludhiana but that does not mean that he has left the control and interest in the demised premises by entering into a partnership. On the contrary, his statement is that he was in possession of the premises in dispute and also runs a ghee business in addition to the business of manufacturing cycle parts. Subhash Chander AW6 has admitted in the statement that when he visited the premises in dispute he found that Shri Prem Chand was present there. Similarly, Shri R.K. Gupta, AW-7 has described Shri Prem, Chand as partner of M/s Ganesh Iron Store. 23. In these circumstances, I am inclined to hold that there was no subletting. It was observed in 1994(1) PLR 492 : 1994(1) RCR 462 (P&H) Ram Dhan Sharma v. Shri Bishan Sarup Mittal and another, that onus lies upon the landlord to establish subletting. In order to constitute subletting two ingredients are required to be proved by the landlord firstly that tenant had parted with the exclusive possession of the demised premises and the same was for valuable consideration. Once the initial onus is discharged, then the onus shifts upon the tenant to show under what circumstances he has parted the possession. In 1994(1) PLR 701 : 1994(1) RCR(Rent) 630 (P&H), Subhash Chander v. Valayati Ram, it was observed that landlord is bound to prove as a fact that the alleged alterations made by the tenant have materially impaired the value and utility of the premises by leading cogent evidence. Reliance can also be placed upon 1989(2) RCR 215 Kewal Chand Jain v. Jiwan Kumar Kaushal on the aspect of subletting. Reliance can also be placed upon 1989(2) RCR 215 Kewal Chand Jain v. Jiwan Kumar Kaushal on the aspect of subletting. Therefore, I affirm the finding of both of the Rent Controller and the appellate authority that landlord has failed to prove the case of material impairment of the value and utility of the demised premises and that of the subletting. I also affirm the finding of the first appellate authority that there was no change of user. 24. The net result is that this revision fails and the same is hereby dismissed with no order as to costs.