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2006 DIGILAW 4254 (PNJ)

Yash Pal v. Nand Kishore

2006-11-01

VINOD K.SHARMA

body2006
Judgment Vinod K.Sharma, J. 1. This revision petition has been filed by a tenant against the order of ejectment dated 14.8.2001 passed by the learned Appellate Authority, Chandigarh. 2. The respondent-landlord herein had filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short the `Act) as applicable to the Union Territory, Chandigarh for ejectment of the petitioner-tenant from the premises i.e. one room, one store, one toilet, bath room and rear verandah of annexee of House No. 189, Sector 11, Chandigarh. 3. It was claimed by the landlord that he was owner of House No. 189, Sector 11, Chandigarh and the premises were let out to the petitioner for a period of 11 of months in April 1994 on a monthly rent of Rs. 1,000/- for residential purpose. 4. The case of the respondent-landlord was that even after the expiry of 11 months, the petitioner-tenant was still in occupation of the premises as tenant. The house was a residential building and was in the residential area of Sector 11 and as per the conveyance deed issued by the Chandigarh Administration in favour of the respondent-landlord, the demised premises can only be used for residential purpose as no commercial activity is permitted. It was further the case of the landlord that a direction has been issued by the Honble Supreme Court that the commercial activities contrary to the provisions of the Act should be stopped. It was further claimed by the respondent-landlord that the petitioner was carrying on commercial activity, therefore, the house was liable to resumption. The plea of the impairing the value and the utility of has also been taken. It was also claimed that the act of the petitioner-tenant amounted to nuisance to the occupants of the building. It was further claimed that other occupants would have to vacate the house if the house is resumed. It was also the case of the respondent-landlord that the petitioner was carrying on business under the name and style of Griffsons Sky View Cable Network which he could not do in his residential building. 5. The claim of landlord was contested by the petitioner where an objection was taken that he has not changed the user of the building. It was also the case of the respondent-landlord that the petitioner was carrying on business under the name and style of Griffsons Sky View Cable Network which he could not do in his residential building. 5. The claim of landlord was contested by the petitioner where an objection was taken that he has not changed the user of the building. It was claimed that the premises were let out for running TV Cable Network and this fact was fully mentioned by the petitioner in the earlier suit which was not controverted by the landlord. The relationship of landlord and tenant as well as the rate of rent was admitted. It was claimed that the premises were given to the petitioner for running a TV Cable Network. It was further claimed that he was not liable to eviction on the grounds mentioned in the petition. It was also claimed that the premises were being used for commercial purposes from the very inception of tenancy and therefore, neither there was change of user nor any material impairment of value and utility. The threat of resumption was also denied. It was also (denied) that petitioner-tenant has committed any act which causes nuisance in the building. 6. On the basis of the pleadings of the parties, following issues were framed :- "1. Whether the respondent is liable to be evicted from the demised premises on the ground of change of user ? OPP 2. Relief." 7. The learned Rent Controller came to the conclusion that the petition was filed by Nand Kishore, the owner landlord of tenanted premises, but did not choose to step into the witness box for the reasons best known to him and instead his father Mange Ram has appeared as PW-1 who did not claim to be an attorney of Nand Kishore. It was held by the learned Rent Controller that on the basis of evidence led by the parties, it was not proved that the petitioner-tenant was guilty of change of user. It was found as a matter of fact that the petitioner-tenant was running Cable Network in the premises from the very beginning i.e. from the inception of the tenancy. It was held by the learned Rent Controller that on the basis of evidence led by the parties, it was not proved that the petitioner-tenant was guilty of change of user. It was found as a matter of fact that the petitioner-tenant was running Cable Network in the premises from the very beginning i.e. from the inception of the tenancy. The other important aspect of the case considered by the learned Rent Controller was that in spite of admission by Mange Ram PW-1, though rent note was executed at the time of letting out the premises, however, the same was not produced and accordingly an adverse inference was drawn against him. 8. In view of these findings, the rent petition was dismissed. 9. In appeal filed by the landlord, the Appellate Authority came to the conclusion that non-production of rent note and non-appearance of the respondent-landlord in the witness box could not be a ground to dismiss the eviction petition. 10. Learned Appellate Authority thereafter proceeded on the premise that even if the building was let for commercial purposes, still the petitioner-tenant could not be allowed to continue to occupy the demised premises for commercial purposes in residential area. The Appellate Authority further found that the landlord and tenant by agreement cannot change the nature of the building. The learned appellate Authority on the basis of these findings came to the conclusion that the petitioner-tenant could not take protection under the terms of the agreement and in support of this contention, reliance was placed on the judgment of the Honble Supreme Court reported in Kamal Arora v. Amar Singh and others, 1985(2) RCR(Rent) 466 (SC) and a judgment of this Court in Bimal Rai v. Lajja Kumari, 1999(2) RCR(Civil) 650 : 1999(1) RCR(Rent) 489 (P&H) : 1999(1) PLR 825. Thus the learned Appellate Authority ordered the eviction of the petitioner by holding that even if the respondent-landlord has let out the building to the petitioner-tenant for commercial use, even then petitioner-tenant was liable to be evicted in view of the latest observations of the Honble Apex Court and this Court. Thus the learned Appellate Authority ordered the eviction of the petitioner by holding that even if the respondent-landlord has let out the building to the petitioner-tenant for commercial use, even then petitioner-tenant was liable to be evicted in view of the latest observations of the Honble Apex Court and this Court. The judgments relied upon by the petition-tenant in the cases of Smt. Sudarshan Kumari v. Anand Kumar Khemka and others, 1986(1) RCR(Rent) 668 (P&H) : 1985(2) RCJ 590 and Miss Kamla Khanna v. Lal Chand Palta, 1989(2) RCR 67 (P&H) were ignored on the ground that these did not relate to the buildings in Chandigarh. Resultantly, the appeal filed by the landlord was accepted and the eviction of the petitioner- tenant was ordered. 11. Learned counsel for the petitioner challenged the order passed by the Appellate Authority primarily by placing reliance on Section 13(2)(ii)(b) of the Act to contend that eviction for change of user can only be ordered if the building is used for the purpose other than for which it was leased out. Thus, the contention of the learned counsel for the petitioner-tenant was that findings recorded by the Appellate Authority are contrary to the provisions of the Act and, the therefore, cannot be sustained. In support of this contention, learned counsel placed reliance on the judgment of this Court in the case of Narinder Kaur Sahi v. Mehnga Ram, 2000(1) RCR(Rent) 31 (P&H). Paras 15, 16 and 17 of this judgment read as under :- "15. At this stage, it would appropriate to notice the relevant provision under the East Punjab Urban Rent Restriction Act, 1949 , as applicable to Union Territory, Chandigarh. The relevant ground of eviction is contemplated under Section 13(2)(ii)(b) of the Act and reads 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 (ii) that the tenant has after the commencement of this Act without the written consent of the landlord - (a) xx x x x xx xx (b) used the building or rented land for a purpose other than that for which it was leased or. xx xx xx xx" 16. xx xx xx xx" 16. It is abundantly clear from the relevant provisions pertaining to the ground of eviction referred to above that it would only by applicable if after the commencement of the Act the building is used for a purpose other than it was leased. In other words, if the same is being used as per the original purpose of letting, in that event, it will not be a ground of eviction if there is subsequent change of law and the rules in other enactments referred to above. 17. It is true that for proper development of the city the laws and bye-laws have to be enforced strictly. The law must take its own course. If the ground of eviction is not available, then it will not be made available by any Act which does not touch the contract between the parties. The expression "for a purpose other than that for which it was leased" obviously contemplates a contract between the parties. It would be appropriate that the Legislature intervenes and amends the Rent Act as applicable to Chandigarh and make available the ground of eviction when the property is used contrary to the purpose of lease or conditions of the allotment letter imposed on the landlord. But so long as it is not done, it is the contract between the parties which must prevail." 12. Learned counsel for the petitioner also placed reliance on the judgment of this Court in the case of Miss Kamla Khanna v. Lal Chand Palta, 1989(2) RCR(Rent) 67, wherein it was held that where residential premises were used by the tenant for commercial purposes from the very inception of the tenancy, then there is no change of user. 13. The next contention of the learned counsel for the petitioner was that keeping in view the fact that the respondent-landlord had not appeared in the witness box, there was no occasion for the Appellate Authority to accept the appeal as the non-failure of the landlord to appear in witness box would lead to presumption that the case set up by him was not correct. In support of this contention, learned counsel for the petitioner placed reliance on the judgment of the Honble Supreme Court in the case of Vidhyadhar v. Mankikrao and another, 1999(1) Apex Court Journal 438, wherein it was held as under :- "Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as he has been held in a series of decisions passed by various High Courts and the Privy Counsel beginning from the decision in Sardar Gurbakh Singh v. Gurdial Singh and another, AIR 1927 PC 230. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and others, AIR 1930 Lah. 1 and Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh, AIR 1931 Bom. 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat, AIR 1970 M.P. 225 also followed the Privy Council decision in Sardar Gurbakh Singhs case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath and another, AIR 1971 All. 29, held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand and others, AIR 1974 P&H 7, drew a presumption under Section 114 of the Evidence Act against a party who did not enter into witness box." 14. Learned counsel appearing for the respondent-landlord placed reliance on the judgment of this Court in the cases of Sanjeev Kumar Sood v. Inderjeet Dhiman, 2003(2) RCR(Rent) 6 (P&H) : 2004(1) PLR 628 and Bimal Rai v. Lajja Kumari, 1999(1) PLR 825 to contend that where there is a threat of resumption, it is open to the landlord to seek eviction. This contention of the respondent cannot be accepted as in the case of Sanjeev Kumar Sood (supra), this Court was pleased to order eviction of the tenant keeping in view the fact that the change of user by the tenant of the tenanted premises was proved. This contention of the respondent cannot be accepted as in the case of Sanjeev Kumar Sood (supra), this Court was pleased to order eviction of the tenant keeping in view the fact that the change of user by the tenant of the tenanted premises was proved. It was held in the said judgment that the landlord is well within his right in initiating eviction proceedings on the premise of change of user which is in contravention of the rent deed and in violation of the statutory rigors. But in the present case, the landlord has failed to prove that the tenant has changed the user of the tenanted premises. Therefore, the authority relied by the counsel for the respondent is of no avail to him. The other case relied upon by the landlord in the case of Bimal Rai (supra) is not under the Rent Restriction Act, but was a case where an injunction was sought by the landlord. The case in hand was not a suit for injunction. Therefore, the said authority has no application. The Rent Act being a special Act has to be interpreted as per the provisions of the Act until and unless the ingredients contained in Section 13 of the Act are fulfilled, it is not open to order eviction of the tenant. 15. Faced with this situation, learned counsel for the respondent-landlord contended that even if the landlord had allowed the premises for commercial use by the tenant, he cannot escape eviction and for the said purpose he placed reliance on the judgment of the Honble Supreme Court reported in Waman Shriniwas Kini v. Ratilal Bhagwandas and Co., AIR 1959 SC 689. Paras 9, 10 and 11 of this judgment read as under :- "9. The respondents suit for ejectment was brought under Section 13(1)(e) which provides : "Notwithstanding anything contained in this Act (but subject to the provisions of Section 15), a landlord shall be entitled to recover possession of any premises if the Court is satisfied - xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx (e) that the tenant has, since the coming into operation of this Act, sublet the whole or part of the premises or assigned or transferred in any other manner his interest therein." 10. It was contended that Section 13(1)(e) had to be read separately and not in conjunction with Section 15 of the Act. The section itself makes it quite clear that it is subject to the provision of Section 15 and the two sections must therefore be read together. The appellant pleaded that under the agreement between him and the respondent he was entitled to sublet the premises. Such an agreement would produce the very result which the law seeks to guard against and to prevent and by sustaining the plea of the appellant the Court would be enforcing an agreement which is prohibited and made illegal. 11. The appellant relied on the maxim in pari delicto potior est conditio posidentis to support this plea that the respondent could not enforce his right under Section 13(1)(e). But this maxim "must not be understood as meaning that where a transaction is vitiated by illegality the person left in possession of goods after its completion is always and of necessity entitled to keep them. Its true meaning is that where the circumstances are such that the Court will refuse to assess either party, the consequence must, in fact, follow that the party in possession will not be disturbed." (per Du Pareq L.J. in Bowmakers Ltd. v. Barnet Instruments Ltd., 1945(1) KB 65, 72). The respondent in the present case did not call upon the Court to enforce any agreement at all. When the instrument of lease was executed and possession given and sub-letting done it received full effect; no aid of the Court was required to enforce it. The respondents suit for ejectment was not brought for the enforcement of the agreement which recognised sub-letting but he asked the Court to enforce the right of eviction which flows directly from an infraction of a provision of the Act (Section 15) and for which the Act itself provides a remedy. There is thus a manifest distinction between this case where the plaintiff asked the Court to afford him a remedy against one who by contravening Section 15 of the Act has made himself liable to eviction and those cases where the Court was called upon to assist the plaintiff in enforcing an agreement the object of which was to do an illegal act. The respondent is only seeking to enforce his rights under the statute and the appellant cannot be permitted to assert in a Court of justice any right founded upon or growing out of an illegal transaction. : [Gibss and Sterret Manufacturing Co. v. Brucker, 1884(4) 111 US 597, 601 : 281 Law Ed. 534, 535]. In our opinion Section 15 of the Act is based on public policy and it has been held that if public policy demands it even an equal participant in the illegality is allowed relief by way of restitution or rescission, though not on the contract." This authority is also of no help to the learned counsel for the respondent- landlord as it is apparent that in the said case provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1957 regarding sub-letting were considered, whereas there is no such provision in the East Punjab Urban Rent Restriction Act. This Court has already observed that it is for the legislature to intervene and amend the Rent Act. In absence thereof, the Authorities under the Act would be bound by the provision of the same. 16 The learned counsel for the respondent thereafter sought to raise a plea by starting a commercial activity, the petitioner-tenant has impaired the value and utility of the premises. For that purpose, reliance was placed on a judgment of the Honble Supreme Court reported in Durga Seed Farm v. Raj Kumari Chadha, 1995(1) RCR(Rent) 606 (SC) : AIR 1995 SC 1160. This authority has also no application as no issue on the question of impairing the value and utility of the demised premises was framed or raised before the Rent Controller nor before the Appellate Authority. The same cannot be raised now especially when the respondent-landlord has not challenged the findings of the Court below. It may further be noticed that this judgment was considered in Narinder Kaur Sahis case (supra). 17. In view of what has been stated above, the revision petition is accepted, the impugned passed by the Appellate Authority is set aside and that of the Rent Controller is restored with no order as to costs.