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2003 DIGILAW 567 (PNJ)

Sanjeev Kumar Sood v. Inderjeet Dhiman

2003-04-23

J.S.NARANG

body2003
Judgment J.S.Narang, J. 1. The facts averred and noticed are that petitioner respondent i.e, Inderjeet Dhiman son of late Sh. Amar Chand Dhiman, is the owner and landlord of the factory existing at plot No. 518, Industrial Area, Phase-II, Chandigarh, out of which a room has been let out to the respondent-petitioner i.e. Sanjeev Kumar Sood son of Harbilas Sood, proprietor M/s Sood Packers and Printers and that the said room was to be used as office of the aforesaid proprietary firm. The said room has been marked as ABCD in the map of the factory which has been attached with the petition. The tenant had been created at the rate of Rs. 500/- month plus electricity and water charges and that a rent deed was also executed in respect thereto. The landlord has been receiving the rent and has been executing the appropriate receipts in respect thereof. The tenant became a defaulter since September 1, 1989 and apart from that also became liable to pay water and electricity charges as well. It has been specifically mentioned in the rent note that the premises shall be used as an office but the tenant started misusing the same and got installed a printing machine without the consent of the landlord. The landlord filed an application for eviction on three counts i.e. on account of non-payment of rent since September 1, 1989, secondly the demised premises are being used for a purpose other than the one for which the same had been let out. Thirdly, the demised premises are required by the landlord for his own bona fide use and occupation. 2. Upon notice, the tenant contested the application and has filed a detailed written statement. It has been pleaded that the demised premises had been taken on rent from Shri Amar Chand Dhiman who has since died and that the alleged landlord is not the only legal heir and is, therefore, not competent to file an application for eviction. It has also been pleaded that the printing press was installed in the demised premises after taking loan from the bank as the premises had been rented out for the purpose of setting up the printing machine and that the demised premises were never taken on rent for the purpose of using as an office only. The rent note has been disputed being not admissible into evidence. The rent note has been disputed being not admissible into evidence. The rent claimed having been tendered on the first date of hearing the application has become infructuous in this regard. The liability of water and electricity charges has been denied. Upon the pleadings of the parties, the issues had been framed and that the parties produced ocular as well as documentary evidence in support of their pleas and pleadings. 3. So far as plea of non-payment of rent is concerned, the same having been tendered on the first date of hearing along with cost and interest, the issue has been decided in favour of the tenant and against the landlord. 4. In respect of the change of user of the premises the landlord appeared as his own witness as PW1 and he has categorically stated that his father was the owner of the demised premises and that after his death he has become the owner of the same. It has also been stated that the demised premises had been let out at a monthly rent of Rs. 500/- to be used for the purpose of office only. The said room has been defined for use of office as per the sanctioned plan. The rent deed has been exhibited as Ex.P1 as the execution of the same has been admitted by the tenant. There is a categoric stipulation contained in the rent deed as per Clause (5) which reads as under:- "xxx xxx xxx xxx(5) That the tenant shall use the premises for running the office of the firm and not for any other purposes." 5. On the other hand, the tenant has pleaded that the demised premises had been let out for setting up a printing press right from the beginning. The landlord was aware of this fact as the loan in this regard had been duly sanctioned by the bank and the machine was installed with the consent of the landlord. It is further alleged that the landlord has been receiving the rent accordingly and had never raised any objection in this regard. Resultantly, the receipt of rent itself established the consent on the part of the landlord. It is further alleged that the landlord has been receiving the rent accordingly and had never raised any objection in this regard. Resultantly, the receipt of rent itself established the consent on the part of the landlord. However, the landlord has emphatically denied this and it has been argued that for change of user the consent in writing was required to be obtained by the tenant but no such consent is forthcoming or has been produced on record. Reliance has been placed upon a judgment rendered in re: Rai Chand Jain v. Miss Chandra Kanta Khosla, 1991 H.R.R. 1 (S.C.). On the other hand, the tenant has placed reliance upon a judgment of this Court rendered in re: Smt. Sudershan Kumar v. Anand Kumar Khemaka and Ors. 1985 H.R.R. 658. 6. It has been emphatically pleaded by the tenant that the rent note Ex.P1 cannot be read into evidence as the same has not been registered as the same was required to be registered compulsorily. Resultantly, the aforesaid document is inadmissible in evidence but can only be used for collateral purpose i.e. for defining the relationship of landlord and tenant. On the other hand, the landlord has categorically disputed the plea of the tenant and has made pointed reference that the rent deed having been executed for a period of 11 months would not be compulsorily registerable. Since the tenant has admitted his signatures upon the document and the contents have not been emphatically disputed or denied or disproved, the document if readable into evidence, therefore, corroborates the fact that the demised premises in question had been let out for being used as an office only. Admittedly, the tenant has set up a printing press in the demised premises in utter violation of the stipulation contained in the rent note and, therefore, the changer of user stands established beyond any doubt. The Rent Controller has accepted the contention and plea of the landlord and resultantly has allowed the application and passed the order dated 5.8.1985 of edition against the tenant. The said order has been challenged by the tenant by way of appeal before the appellate authority. The Rent Controller has accepted the contention and plea of the landlord and resultantly has allowed the application and passed the order dated 5.8.1985 of edition against the tenant. The said order has been challenged by the tenant by way of appeal before the appellate authority. The tenant filed an application for seeking amendment of the written statement and that additional plea has been sought to be taken that neither the landlord nor his father ever raised objection for the running of the press in carrying on the business of printing by the tenant and thus itself would amount to consent. The application has been dismissed by the Appellate Authority that no objection having been raised by the landlord and the rent having been accepted would amount to consent. However, this plea has been rejected on the premises that when a statute provides a particular mode for doing a particular act, compliance thereof is sine qua non for performance of such act. Thus, the change of user without the written consent is not remissible and in this regard reliance has been placed upon the judgments of this Court rendered in Re: Des Raj v. Sham Lal, (1980)82 P.L.R. (P&H) 647 and Inder Singh Chopra v. Jaidev Gopal, 1989 H.R.R. 595. It has also been noticed that even exposure of a landlord to the peril of resumption of the site by the Estate Officer, is a strong ground and an indicator for eviction of a tenant under the Chandigarh Sales and Sites Rules, 1956. In this regard reference has been made to the judgment of the Apex Court in re: Durga Seed Farm v. Raj Kumari Chadha, A.I.R. 1965 S.C. 1160. 7. Learned counsel for the landlord, before the Appellate Authority, has argued that mere change of the landlord in respect of change of user would not absolve the tenant from the liability of ejectment. In support of this argument reliance has been placed upon a Division Bench judgment of this Court reported as Dharam Raj and Anr. v. Roshan Lal and Anr., (1993-1)103 P.L.R. (P&H) 685. It is argued that consent or knowledge of the change of user may even be from the inception of tenancy yet it will not be sufficient to provide any immunity to the tenant from the rigour of the provisions of the Act. v. Roshan Lal and Anr., (1993-1)103 P.L.R. (P&H) 685. It is argued that consent or knowledge of the change of user may even be from the inception of tenancy yet it will not be sufficient to provide any immunity to the tenant from the rigour of the provisions of the Act. Reference has been made to the view expressed by this Court in Hari Ram v. Sh. Gurbax Singh, (1989-2)96 P.L.R. (P&H) 609 and also a reference has been made to the dicta of this Court in Thakar Das Batra and Anr. v. Mithan Lal, 1977 R.C.R. (Financial Commissioner, Haryana) 374. It has also been held that if the premises are used by a tenant for a non-residential user (printing press), it would not change the character of the building as has been observed by the Apex Court in Rai Chand Jains case (supra). 8. In the case at hand, the change of user of the premises defined to be used as an office, would amount to change of user, the landlord has categorically proved that the demised premises stood defined as office room in the sanctioned plan by the Chandigarh Administration and that the user also stood defined by virtue of the rent deed, the violation of the same right from the inception of the tenancy or otherwise would not take away the right of the landlord to seek eviction from the premises on account of change of user. It is the settled law that no amount of waiver or acquiescence which may be reflectable from the conduct of the parties would legalise the misuser and that upon these premises the landlord would be justified in seeking eviction on the ground of change of user. Thus, the plea of waiver or acquiescence has not been accepted by the Appellate Authority, resultantly, the appeal has been dismissed vide order dated 13.3.1997. 9. Learned counsel for the petitioner has argued that the forums below have erred in non-suiting the petitioner on the ground of change of user of the demised premises. The admitted concession of the landlord while renting out the premises that the printing machinery was installed and was allowed to function and that no objection was ever raised by the landlord shows a categoric consent on the part of the landlord. The admitted concession of the landlord while renting out the premises that the printing machinery was installed and was allowed to function and that no objection was ever raised by the landlord shows a categoric consent on the part of the landlord. In support of his argument, reliance has been placed upon the following judgments:- (1) Mohan Lal v. Rajai Bhagwan, (1988-1)93 P.L.R. 670 (S.C.). (2) Gurdial Batra v. Raj Kumar, (1989-2)96 P.L.R. 313 (S.C.). (3) Ram Dhan Sharma v. Shri Bishan Sarup Mittal, Advocate and Anr.(1994-1)106 P.L.R. 492; (4) Sudershan Lal (Died) through L.Rs. v. Shrimati Bhushan Sehgal and Ors. 2000(1) R.L.R. 628. 10. On the other hand, learned counsel for the respondent has argued that in view of the dicta of the apex Court in Rai Chand Jains case (supra), nothing can be read against the landlord when the statute categorically requires that for change of user the consent of the landlord in writing shall be necessarily required. In the case at hand, the tenant executed the rent note knowing well that demised premises can only be used for the purpose of office yet used it for setting up a printing press. The tenant has made miserable effort in making an effort, as in the first instance it is said that the rent note is not admissible in evidence having not been registered, when the same is required to be registered compulsorily. The perusal of the said document shows that the same has been executed for a period of 11 months, as such is not required to be registered compulsorily. Another effort has been made by way of seeking amendment to the written statement wherein again the tenant has failed and that the application has been correctly dismissed by the Appellate Authority. The petitioner-tenant has again filed an application before this Court for seeking similar relief. It is not understandable how such application would be maintainable because such similar relief has been declined categorically by the Appellate Authority. 11. After hearing learned counsel for the parties and the perusal of the documents brought on record as also the perusal of the citation cited at the bar, I am of the view that the appeal merits dismissal. It is not understandable how such application would be maintainable because such similar relief has been declined categorically by the Appellate Authority. 11. After hearing learned counsel for the parties and the perusal of the documents brought on record as also the perusal of the citation cited at the bar, I am of the view that the appeal merits dismissal. The tenant has made miserable efforts to get out of the rigour of the rent deed Ex.P1 wherein it has been categorically provided that the premises shall be used only for the purpose of office and no other purpose. Despite this categorical condition, the tenant has used the premises by setting up a printing press and that too without the written consent in writing is obtained by the tenant from the landlord. In the case at hand, no such document has been produced on record and that the demised premises had been let out specifically for office use as has been shown in the plan which has been sanctioned by Chandigarh Administration. In respect of the demised premises, to be used as an office, the violation of which would definitely entail resumption of the plot by Chandigarh Administration. Thus, by change of user, the tenant has subjected the landlord to peril of resumption under the statute applicable to the premises. It is correct that no amount of waiver or acquiescence on the part of the landlord would save him from the rigour of resumption proceedings which may be or could be initiated against the landlord accordingly. Thus, the landlord is well within his rights for initiating eviction proceedings on the premises of change of user, which is in contravention of the rent deed and in violation of the statutory rigorous. 12. The petitioner has filed an application (C.M. No. 3990-CII of 1997) for seeking amendment of the written statement, I am afraid no indulgence can be granted as the similar relief had been asked for by the tenant before the appellate authority which has been declined and that the plea has been discussed while dismissing the appeal, I accept the observations of the Appellate Authority in this regard. Resultantly, the application is dismissed. In view of the above, I find no merit in the petition and the same is dismissed with on order as to costs.