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2005 DIGILAW 390 (PNJ)

Jaswant Lal v. Ved Parkash Sat Pal

2005-03-16

VINEY MITTAL

body2005
Judgment Viney Mittal, J. 1. Landlord-petitioner has approached this Court through the present petition filed under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 . The challenge is to the order dated July 18, 1988 passed by the learned Appellate Authority, Bathinda whereby the appeal filed by the tenant-respondents against the order of ejectment dated September 1, 1987 passed by the learned Rent Controller was set aside and consequently, the ejectment application filed by the landlord was dismissed. 2. Landlord sought the ejectment of the tenants on the ground of non-payment of arrears of rent as well as the change of user. The only ground which survives for consideration before this Court is change of user by the tenants. It was claimed by the landlord that the demised premises had been let out for residential purposes but the tenants had started using the same for the purposes of business-cum-godown. Accordingly, it was claimed that the aforesaid change of user by the tenants was without the written consent of the landlord. 3. The factum of change of user was denied by the tenants. It was claimed that the demised premises was being used for residential purposes only since the inception of tenancy. It was also pleaded by the tenants that earlier also, the landlord had filed an application for eviction on identical grounds but the said application had been dismissed and even an appeal filed by the landlord, was dismissed by the Appellate Authority. Accordingly, it was claimed that the present application for eviction filed by the landlord was not maintainable and was hit by the principles of res judicata. It was also claimed that the ground of ejectment sought by the landlord was factually-incorrect. 4. The learned Rent Controller, on the basis of evidence led by the parties allowed the ejectment petition filed by the landlord and consequently, ordered the ejectment of the tenants. The tenants filed an appeal before the learned Appellate Authority. The learned Appellate Authority vide the impugned order dated 18.7.1988 accepted the appeal filed by the tenants and after setting aside the order of ejectment passed by the learned Rent Controller, dismissed the ejectment petition filed by the landlord. 5. The landlord has now approached this Court through the present petition. 6. The learned Appellate Authority vide the impugned order dated 18.7.1988 accepted the appeal filed by the tenants and after setting aside the order of ejectment passed by the learned Rent Controller, dismissed the ejectment petition filed by the landlord. 5. The landlord has now approached this Court through the present petition. 6. I have heard Shri M.L. Sarin, the learned Senior Counsel appearing for the landlord-petitioner and Shri Arun Jain, the learned counsel appearingfor the tenant-respondents and with their assistance, have also gone through the record of the case. 7. Before adverting to the various contentions raised by the learned counsel for the parties, it may be pertinent to notice certain facts which are not in dispute between the parties. 8. In an earlier ejectment application filed by the landlord (September, 1979), ejectment of the tenants was sought on the ground that the tenants had changed the user of the demised premises, The learned Rent Controller, vide his order dated September 23, 1981 (Ex.R-2) dismissed the aforesaid ejectment application. It was held by the learned Rent Controller that the landlord had failed to prove that the tenants had changed the user of the premises. An appeal filed by the landlord before the learned Appellate Authority, was also dismissed vide order dated December 4, 1982 (Ex.R-4). Subsequently, another ejectment application was filed by the landlord in the month of October, 1983. This time, the landlord sought the eviction of the tenants from the demised premises and also from the front portion of the building, which had been let out separately to the tenant for business purposes. An objection was raised by the tenants with regard to maintainability of the aforesaid petition with regard to two separate tenancies. Vide order dated 9.4.1985 (Ex.R-5), the landlord withdrew the aforesaid ejectment with a liberty to file a fresh petition in accordance with law. It is in these circumstances that the present petition was filed for seeking ejectment of the tenants from the demised premises i.e. from the back portion of the building let out to the tenants, which admittedly had been let out only for the purpose of residence. 9. Shri M.L. Sarin, the learned Senior Counsel appearing for the landlord has contended that on the filing of the ejectment application on July 29, 1985, an application was also filed for appointment of a Local Commissioner. 9. Shri M.L. Sarin, the learned Senior Counsel appearing for the landlord has contended that on the filing of the ejectment application on July 29, 1985, an application was also filed for appointment of a Local Commissioner. Accordingly, the learned Rent Controller appointed Shri A.K. Bansal, Advocate as Local Commissioner to inspect the demised premises. The aforesaid Local Commissioner visited the demised premises on July 30, 1985 and submitted his report, Ex.A-2. According to the aforesaid report, the Local Commissioner reported that on his visit, he found that goods and articles of the shop packed in bags were lying in the room Mark A in rough site plan and the aforesaid room was being used for shop purposes and there was no residence of anyone in the said room. It was also noticed by the learned Local Commissioner that no articles of residential nature such as cots, utensils, luggage etc. were there and even in the kitchen, empty boxes and packing material were lying and lots of dust etc. was visible. The learned counsel has then stated that the Local Commissioner has also appeared as AW-4 during the course of evidence. He was also cross-examined by the tenants. Relying upon the statement of AW-4 as well as the report submitted by him (Ex.A-2), it has been vehemently contended by the learned Senior Counsel that it was clearly proved on the record that the tenants were, using the demised premises for the purposes of storing of the goods i.e. for commercial purposes and not for residential purposes at all. Shri Sarin has also brought to my notice the averments pleaded by the landlord in his ejectment application. In para 2(b) of the ejectment application, the landlord had specifically pleaded that an earlier ejectment petition had been filed by him seeking the ejectment of the tenants on the ground of change of user but the tenants reverted their residence to the demised premises and on account of which, the landlord was unsuccessful in establishing the change of user. Accordingly, the said application was dismissed. It has further been pleaded that, subsequently, the tenants had shifted their residence from the demised premises to their own residential house No. 629/5, Amrik Singh Road, Bathinda and had started using the demised premises for business-cum-godown purposes. Accordingly, the said application was dismissed. It has further been pleaded that, subsequently, the tenants had shifted their residence from the demised premises to their own residential house No. 629/5, Amrik Singh Road, Bathinda and had started using the demised premises for business-cum-godown purposes. Shri Sarin has also brought to my notice the corresponding paragraph of the reply filed by the tenants in which the tenants had merely raised an objection with regard to the maintainability of the ejectment petition by claiming that on similar facts, an earlier ejectment petition had been dismissed. According to the learned counsel, the facts pleaded in the ejectment petition had not been specifically denied by the tenants and as such shall be deemed to have been admitted. The learned counsel for the landlord has further assailed the findings recorded by the learned Appellate Authority on the ground that once it had been established by the Local Commissioner that the tenants were using the premises in dispute for a purpose other than for which the same had been let out, then it gives an independent and subsequent cause of action to the landlord to seek their ejectment and in these circumstances, the dismissal of the earlier ejectment application filed by the landlord could not be taken into consideration. 10. On the other hand, Shri Arun Jain, the learned counsel appearing for the tenants has supported the order of the learned Appellate Authority by contending that once a finding had been recorded in the earlier ejectment petition, through order Ex.R-2 and the appellate order Ex.R-4, that there was no change of user proved by the landlord, then the present ejectment application on the same ground was not maintainable. It has further been argued by the learned counsel that the landlord has specifically pleaded that the tenants had shifted to their own residence i.e. No. 629/5, Amrik Singh Road but had not led any evidence to prove the aforesaid fact. On that basis, the learned counsel has argued that the present ejectment application was neither maintainable in law nor the aforesaid ground taken by the landlord was sustainable on facts. In support of his contention, the learned counsel has placed reliance on a judgment of this Court in case Inder Sain v. Gian Chand, 1981(1) R.C.R. 25. 11. I have given my thoughtful consideration to the rival contentions of the learned counsel for the parties. In support of his contention, the learned counsel has placed reliance on a judgment of this Court in case Inder Sain v. Gian Chand, 1981(1) R.C.R. 25. 11. I have given my thoughtful consideration to the rival contentions of the learned counsel for the parties. In my considered view, the present revision petition deserves to succeed. 12. As noticed above, there is no dispute on facts that an earlier ejectment application had been filed by the landlord on the ground of change of user. However, the aforesaid application was dismissed by the Rent Controller through order Ex.R-2. The appeal filed by the landlord also failed vide order Ex. R-4. The perusal of the aforesaid two orders Ex.R-2 and Ex.R-4, however, clearly shows that the claim of the landlord was rejected on the ground that the landlord had failed to prove that the tenants had changed the user of demised premises. The present ejectment application has been filed by the landlord by specifically mentioning the aforesaid fact of failing in the earlier ejectment application and further claiming that the tenants had again shifted their residence from the demised premises to their own residential house No. 629/5, Amrik Singh Road, Bathinda and that they had started using the demised premises for business-cum-godown purposes. In the reply filed by the tenants to the aforesaid plea, the tenants have remained satisfied by merely taking a technical plea with regard to maintainability of the ejectment petition. It has been claimed that since an earlier ejectment petition on similar grounds had been dismissed, therefore, a fresh petition on the said ground was not maintainable. Although the tenants have tried to deny the factum of change of user but they have not denied at all the factum of shifting of their residence to House No. 629/5. The denial of the tenants is just evasive and vague. The said evasive and vague denial cannot be taken to be any denial of facts pleaded by the landlord. Accordingly, it can safely be inferred that the aforesaid facts pleaded by the landlord stand admitted by the tenants. 13. Besides the aforesaid fact, a Local Commissioner was appointed by the learned Rent Controller vide order dated July 10, 1985. The Local Commissioner visited the demised premises. He submitted his report Ex.A-2. It would be relevant to notice the contents of the aforesaid report at this stage. 13. Besides the aforesaid fact, a Local Commissioner was appointed by the learned Rent Controller vide order dated July 10, 1985. The Local Commissioner visited the demised premises. He submitted his report Ex.A-2. It would be relevant to notice the contents of the aforesaid report at this stage. The relevant contents of the aforesaid report are as follows:- "3. That Sh. Charanji Lal firstly refuses to allow the inspection of the spot, but when shown the orders of this Hon ble Court, allowed the same. Goods and articles of the shop packed in bags were lying in the room Mark A in rough site plan attached. The said room is being used for shop purposes and there is no residence of anyone in the said room. No articles of residential nature such as cots, utensils, luggage etc. were there and no lady or children were present. 4. That the kitchen was lying locked and when asked Charanji Lal to open the door of the kitchen, he told that the key of lock was not available. Along side the door there is window having a cement Jali with holes therein. From the holes I saw the empty boxes and Bardana and lot of dust and webs on the walls were visible. 14. The Local Commissioner Shri A.K. Bansal had also appeared as AW-4. He was duly cross-examined by the tenants. Even during the cross-examination, nothing tangible could be extracted by the tenants in their own favour. The Local Commissioner stuck to his own report. 15. The report of the Local Commissioner clearly shows that when he went to the spot, he found that goods and articles of the shop, packed in bags, were lying in the room. The said room was being used for shop purposes and there was no residence of anyone in the said room. No articles of residential nature such as cots, utensils, luggage etc. were found. No family members of the tenants were there. The kitchen was also found to be locked and when not opened by the tenant, the Local Commissioner peeped inside through a window. He found that there were empty boxes i.e. Bardana(packing material) inside the kitchen. There was lots of dust and webs on the walls. were found. No family members of the tenants were there. The kitchen was also found to be locked and when not opened by the tenant, the Local Commissioner peeped inside through a window. He found that there were empty boxes i.e. Bardana(packing material) inside the kitchen. There was lots of dust and webs on the walls. This report of the Local Commissioner leads to an irresistible conclusion that the aforesaid demised premises (i.e. the back portion) was being used by the tenants only for the purposes of storage of the goods of the shop, which was being run by the tenants in the front portion and for the storage of package material. The tenants or their families were not found living there. There was no evidence of any residence being maintained. 16. The tenant Charanji Lal also appeared as RW-1 on his own witness. Although in his own statement, he did depose that he was living in the demised premises as well as in his own house but no evidence of maintaining of a residence in the demised premises was led by the tenants, besides his own bald statement, no other evidence was produced by the tenants. No neighbours were produced to support that the tenants were living in the demised premises. In these circumstances, it is apparently clear that the tenants or their families were not living in the demised premises, which was being used solely for the purpose of storage of goods of the shop. The learned appellate authority has completely fallen into an error in not taking into consideration the report of the Local Commissioner and his statement. The factum that the tenant has failed to produce any evidence to rebut the aforesaid evidence led by the landlord has also not been kept in view by the learned Appellate Authority. 17. Even with regard to the maintainability of the present petition, it may not be out of place to notice here again that the ground of change of user is a continuing wrong. 17. Even with regard to the maintainability of the present petition, it may not be out of place to notice here again that the ground of change of user is a continuing wrong. If, at an earlier stage, the landlord had failed to prove the aforesaid fact because of in-sufficiency of evidence or because of the fact, as claimed by the landlord that the tenants had shifted their residence back to the demised premises, still it would be open to the landlord to show at a subsequent stage and seek ejectment, if there was a fresh cause of action i.e. if change of user was found to be there at any subsequent stage. In my considered view, the landlord has been able to prove the aforesaid fact by leading cogent evidence. The tenants have miserably failed to rebut the aforesaid evidence. In these circumstances, I have no hesitation in holding that the tenants had been using the demised premises for a purpose other than for which the same had been let out i.e. the tenants had been using the premises for non-residential purposes whereas the premises had been let out for residence alone. 18. At this stage, it would also be relevant to notice another argument of the learned counsel for the tenants. Shri Jain has vehemently argued that the landlord has not been able to prove that the tenants had shifted their residence to their own house i.e. No. 629/5 and in the absence of the aforesaid evidence, the claim made by the landlord was to be rejected. In my considered view, the aforesaid factum of the tenants having shifted their residence to another house was stated by the landlord only by way of elaboration. The primary plea taken by the landlord was that the tenants had changed the user of the demised premises. As a matter of fact, it was the aforesaid plea alone which was sufficient for the determination of the controversy. Once a conclusion is drawn that the aforesaid plea was proved, then the elaboration as to whether the tenants had shifted their residence to their own house was wholly extraneous to the controversy, although the landlord has led evidence to the effect also that the tenants had shifted their residence to their own house. The fact is even admitted by the tenants by claiming that the aforesaid residence was not sufficient for their needs. The fact is even admitted by the tenants by claiming that the aforesaid residence was not sufficient for their needs. They claimed that they were maintaining the residence at the demised premises as well but the aforesaid controversy is really irrelevant to the ground of ejectment. 19. Before parting with this judgment, the reliance placed by the learned counsel for the tenants on the judgment in Inder Sain and Gian Chands case, 1981(1) R.C.R. 25, may be noticed. 20. In the aforesaid case, a finding of fact had been recorded by the Appellate Authority that the landlord was residing in the aforesaid house but was also keeping certain articles of business therein. It was in those circumstances, that this Court had held that merely because the tenants had placed certain goods in the premises, could not be taken to be sufficient to hold that the building had been used for a purpose other than the one for which it was leased. However, in the present case, as has been noticed above, the evidence on the record is that the tenants had been using the premises in question only for the purpose of storing of the business goods and packing material and not for residence at all. In these circumstances, the law laid down in Inder Sain v. Gian Chands case (supra) would be inapplicable. 21. In view of the aforesaid discussion, the present revision petition is allowed and after setting aside the order of the learned Appellate Authority, order of the learned Rent Controller is restored Consequently, the ejectment petition filed by the landlord is allowed and the tenant-respondents are directed to hand over the possession of the demised premises to the landlord. There shall be no order as to costs.