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2001 DIGILAW 1405 (PNJ)

Sasta Iron Store v. Shandi Devi

2001-12-18

N.K.SUD

body2001
Judgment N.K.Sud, J. 1. This civil revision is directed against the order of the Appellate Authority, Jaladhar, dated 8.11.2001, dismissing the appeal of the tenant-petitioners against their eviction from the demised premises on the ground of change of user. 2. The case of the respondent-landlords was that House No. 37, Lajpat Nagar, Jalandhar had been let out to the petitioners for residential purposes but they have changed its user to commercial purposes without their consent. The petitioners had denied this allegation and had maintained that right from the inception of the tenancy, the demised premises had been let out for commercial purposes and, therefore, there was no change in user. The tenancy had come into being on the basis of a Rent Note dated 23.6.1973 which was admitted on record as additional evidence. After perusing the terms of the said rent note and the written statement filed by the tenants in an earlier eviction petition, the authorities below came to the conclusion that the portion consisting of room, verandah, miani, kitchen and bathroom could be said to have been taken on rent for residential purposes only. They, therefore, held that since the petitioners have put it to commercial use by carrying on the business in the name and style of Sasta Iron Store, which was registered under the Shops Act as a commercial shop, the user had been changed from residential to commercial. 3. Mr. Hemant Kumar appeared on behalf of the petitioners and disputed the findings of the authorities below on various grounds. 4. He, firstly, contended that the premises in question had been let out for commercial use from the very inception. He referred to the rent note dated 23.6.1973 to show that the vacant piece of land measuring 20 x 60 had been let out for the purposes of shop and the petitioners had been given the right to construct a shed thereon at their own cost. As far as the built-up portion consisting of a room, kitchen, latrine and bathroom is concerned, there was no restriction in the rent note that it will be put to residential use only. 5. There is no merit in this contention. The rent note clearly shows that the built-up portion had been given for residential purposes only. As far as the built-up portion consisting of a room, kitchen, latrine and bathroom is concerned, there was no restriction in the rent note that it will be put to residential use only. 5. There is no merit in this contention. The rent note clearly shows that the built-up portion had been given for residential purposes only. It is evident from the main paragraph as well as Clause-7 of this deed, which read as under :- "that a site 20 x 60 for the purpose of shop, a kothi consisting of a room, kitchen, latrine, bathroom Northern side of which is Kothi No. 37, situated in Lajpat Nagar, Jalandhar, which is in possession of Gian Chand, the second party, the above said area 20 x 60, a room, kitchen, latrine and bathroom has been taken on rent from the first party at the rate of Rs. 245/- per month for a period of 11 months for a period from 23.6.1973 to 11.5.1974, at present there is no water connection. xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx 7. That the first party will have right to construct a shed on the area measuring 20 x 60 at his own cost. However, in case of ejectment, he shall remove the malba. Second party shall not pay any compensation. The remaining tenanted premises is residential but the first party shall not make any construction or alterations therein. The shed constructed can be used by the first party for the purpose of shop wherein the first party can keep saria and gadar etc." 6. A conjoint reading of the above two paragraphs clearly shows that it is only the site measuring 20 x 60 which had been given for the purposes of shop. If the intention was to give the entire premises for commercial purposes, then the words "for the purposes of shop" would have qualified the entire description of the property and not merely the site measuring 20 x 60 The authorities below have also found that Kothi No. 37, Lajpat Nagar, Jalandhar was carved out of a residential area and the sanctioned plan was for construction of a residential house. There were ration cards and voters lists for this premises as well. Thus, it is evident that the built-up portion had been let out for residential purposes only. 7. There were ration cards and voters lists for this premises as well. Thus, it is evident that the built-up portion had been let out for residential purposes only. 7. Learned counsel for the petitioners, then, contended that onus of proving the change in user was on the landlords which had not been discharged. The finding on this aspect has been based merely on the basis of the written statement filed by the petitioners in earlier eviction petition. He referred to the eviction petition in the present case to show that the allegation made against them was that the demised premises had been given on rent for residential purposes which had now been put to commercial use. This, according to him, was totally a vague allegation inasmuch as the rent note clearly shows that the site measuring 20 x 60 had duly been let out for the purposes of a shop. Thus the application for eviction deserved to be dismissed on this ground alone. For this purpose, he relied on the decision of the Apex Court in Atul Castings Ltd. v. Bawa Gurvachan Singh, 2001(1) RCR(Rent) 532 (SC) : 2001(5) Supreme Court Cases 133 and especially to the observations in para-11 to the effect that the charge about change in user should be specific. 8. There is no merit in this contention. In the eviction petition, the landlords in ground (b) of para-4 had alleged as under :- "b) That the respondent has changed the user of property in dispute. The property in dispute was rented out to the respondent for residential purposes but the respondent without the written consent of the petitioner (changed the) user of the property from residential to commercial," This charge was denied in para-3 of the preliminary objections as well as in para-3(b) of the reply on merits, in the following terms :- "3. That the property in question right from its inception had been constructed for commercial purposes and was rented out to the respondents for commercial purposes. Therefore, the same or any portion of it, cannot be got vacated on the ground of personal necessity." "3(b) Sub-para (b) of the petition is wrong and incorrect. The respondents are not guilty of change of user of the premises. The properly is commercial in nature and had been rented out as such and is being used as such, ever since the inception of the tenancy. The respondents are not guilty of change of user of the premises. The properly is commercial in nature and had been rented out as such and is being used as such, ever since the inception of the tenancy. It is wrong that the property in question is residential in nature." 9. From the above, it is evident that the charge pertained to the built-up portion of Kothi No. 37, Lajpat Nagar, Jalandhar City. If the charge had been vague, the petitioners would have simply stated that they were only using the area measuring 20, x 60, for commercial purposes which they were duly authorised to do. The reply of the petitioners shows that they had set-up a case that the entire premises including the built-up portion had been let out for commercial purposes and it is on this basis that the allegation had been denied. It is evident from the written statement that they had not stated that the portion meant for residential purposes had not been put to commercial use. There is an inherent contradiction in the stand set-up by the petitioners before me. On the one hand, the commercial user is sought to be justified on the ground that the rent note does no debar them from using the built-up portion for commercial purposes and on the other hand it has been claimed that there has been no change in user of the built-up portion. Once it has been found from the rent note that the built-up portion was meant to be used for residential purposes and there is no denial by the petitioners that it was not being used for commercial purposes for the business of Sasta Iron Store, the inevitable conclusion is that there has been a change in user. The reliance on the decision of the Apex Court in the Atul Castings Ltd. (supra) is totally mis-placed as in that case, the tenant had denied that he was using the residential premises for the purposes of business. It had been specifically found in that case that the house was being used for the residence of the Managing Director and one room was used by him to do some home work relating to the office. Further, it has also been found that the same room was being used by the other family members also as a study room. It had been specifically found in that case that the house was being used for the residence of the Managing Director and one room was used by him to do some home work relating to the office. Further, it has also been found that the same room was being used by the other family members also as a study room. It was in this context that the observations relied upon by the petitioners had been made. 10. Learned counsel for the petitioners also relied on the decision of the Supreme Court in Gurdial Batra v. Raj Kumar Jain, 1987(2) RCR(Rent) 455 (P&H) : AIR 1989 Supreme Court 1841 and Mohan Amba Prasad Agnihotri and others v. Bhaskar Balwant Aher (Dead) through L.Rs., 2000(1) RCR(Rent) 275 (SC) : AIR 2000 Supreme Court 931, to contend that the user of a room meant for residential purposes for the purposes of business could not be said to be change in user when it was evident that a substantial part of the property had been given for commercial purposes. In Gurdial Batras case (supra), the allegation of the landlord was that the premises had been let out for the purposes of running a cycle and rickshaw repairing shop whereas the tenant had also started selling Televisions in the premises. It was in this context that the allegation of change in user had been turned down. The Supreme Court had held that the change in nature of business did not bring about change in user. However, it had specifically been observed in para-6 that "A house let out for residential purpose would not be available for being used as a shop even without structural alteration". Thus, this case does not support the case of the petitioners in any manner. In fact, it goes directly against them. 11. Similarly, in Mohan Amba Prasad Agnihotris case (supra), the let out premises comprised of three rooms; two rooms on front side for purposes of running a motor cycle workshop and one room on the rear side for residential purposes. The allegation for change of user was based on the fact that the rear room was being partly used for storing spare parts of motor cycles. Thus, it is evident that the said room was also being used for residential purposes. It was only in addition that some spare parts were being stored in that room. The allegation for change of user was based on the fact that the rear room was being partly used for storing spare parts of motor cycles. Thus, it is evident that the said room was also being used for residential purposes. It was only in addition that some spare parts were being stored in that room. This is not the case in the present petition. Here, admittedly, the built-up portion which had been let out for residential purposes is being used for commercial purposes. It is not the case set-up by the petitioners that they are also using it for residential purposes. 12. In the light of the aforesaid discussion, I find no ground to interfere in the concurrent findings of fact recorded by the authorities below that there has been a change in user in respect of the demised premises. The civil revision is, accordingly, dismissed in limine.