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2014 DIGILAW 1266 (PNJ)

Rajesh Kumar Garg v. Partap Singh

2014-09-06

BHARAT BHUSHAN PARSOON

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Dr. Bharat Bhushan Parsoon, J. 1. Landlord Dr. Partap Singh had filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as 'the Act') for eviction of tenant Rajesh Kumar Garg from the premises i.e. shop situated in village Sidhuwal, Bhadson Road, Tehsil and District Patiala as detailed and described in the petition, interalia, on the grounds of non-payment of rent and change of user of the premises without the consent of the landlord. 2. Though relationship of landlord and tenant was not denied but contest was made by the tenant on the grounds of eviction pleaded by the landlord. On receipt of oral as well as documentary evidence, Rent Controller had not found merit in the claim of the landlord and sequelly his petition was dismissed on 23.1.2006. The Appellate Authority under the Act reversing finding of the Rent Controller on all the issues, had passed an eviction order against the tenant on 1.5.2008. 3. The Appellate Authority had found that enhanced rent from Rs.650/- to Rs.1,400/- had not been paid by the tenant since November, 1990 and in addition there was change of user of the premises without the consent of the landlord. 4. In this revision petition preferred by the tenant, it is claimed that right from inception of his tenancy with effect from 1.11.1989, the same business was being carried out in the premises and there was no change of user. It is claimed that mere selling of additional items of paints and other hardware material does not amount to change of user as selling of paint and hardware items is ancillary to the main business which was being carried out by the petitioner-tenant for which the shop had been taken on rent. It is claimed that finding of the Appellate Authority that selling of paint and hardware items is not ancillary to the main business items and rather it is independent business, is wrong and untenable. It is claimed that there is no evidence produced by the landlord either to show that there was any impairment in value or fall in utility of the premises. 5. On the ground of non-payment of rent as well, it is claimed that finding of the Appellate Authority that rent was increased from Rs.650/- to Rs.1,400/- is incorrect whereas there was no tenable and acceptable evidence on this count. 5. On the ground of non-payment of rent as well, it is claimed that finding of the Appellate Authority that rent was increased from Rs.650/- to Rs.1,400/- is incorrect whereas there was no tenable and acceptable evidence on this count. It is averred that the Appellate Authority had misread and misappropriated the oral and documentary evidence. Seeking reversal of the impugned judgment of the Appellate Authority, acceptance of the revision has been sought. 6. Hearing has been provided to the counsel for the parties. 7. Originally following issues had been framed on 8.1.1996:- 1. Whether the rate of rent of the demised premises is Rs.1,400/- per month as alleged? OPA. 2. Whether the respondent is liable to pay the House Tax? OPA 3. Whether the respondent is liable to be ejected on the ground of arrears of rent as well as House Tax? OPA 4. Whether respondent has changed the user of the premises in dispute without the consent of applicant? OPA 5. Relief. 8. Additional issues framed on 20.11.2002 are to the following effect:- 4-A Whether the respondent has changed the user of said shop/premises with the consent of applicant? OPR. 4-B Whether the selling of glass, paint and hardward is not against the terms of the rent note? OPR. 9. Though, the Rent Controller had omitted to return specific findings on issues No.4-A and 4-B but findings, interalia on issue No.4 broadly encompassing the field of issues No.4-A and 4-B were returned against the landlord. As has already been noticed, findings of the Rent Controller even on other issues were against the landlord. 10. Discussing issues No.1 to 3 together in one group and issues No.4, 4-A and 4-B again together in the other group making separate discussion, findings of the Rent Controller were reversed by the Appellate Authority. 11. Since it is a judgment of reversal of findings of the Rent Controller by the Appellate Authority, discussion of oral as well as documentary evidence to arrive at a correct conclusion is necessary. 12. Notwithstanding objection of the tenant that production of rent note Ex.P2/X during appeal proceedings pursuant to an application under Order XLI Rule 27 CPC made by the landlord, is not permissible in view of Shri Bishan Dass and ors. 12. Notwithstanding objection of the tenant that production of rent note Ex.P2/X during appeal proceedings pursuant to an application under Order XLI Rule 27 CPC made by the landlord, is not permissible in view of Shri Bishan Dass and ors. Versus Shri Kehar Singh and anr., 1972 R.C.R.(Rent) 217 and Kuljit Singh Sehgal Versus M/s Gupta Agencies andanr., 1992(1) P.L.R. 493., it remains a fact that there is neither denial of execution of rent note Ex.P2/X nor there is any divergence on contents thereof. In short reading of rent note in evidence cannot be questioned by the tenant. It is further noteworthy that in earlier litigation as well, there had been no denial of execution of the rent note by the tenant. In fact rent note between the parties was duly put in evidence by the tenant himself in his civil suit between the parties. 13. Counsel for the petitioner-tenant referring to Clause 4 of the rent note has urged that he continues to carry on the business of selling of cement, chips and ply in the premises and is also selling glass, paints and hardware items. To be specific para No.6 of the written statement furnished by the tenant is reproduced as below:- “That para No.6 is admitted to this extent that the shop was taken on rent for the purpose of selling cement, chips and ply etc. It is wrong that the respondent has changed the user of the said shop without consent of the applicant. The glass, paint and hardware business are not against the terms of rent note. These items are ancillary and the respondent is till selling the cement etc. It is wrong that respondent is liable to be ejected under Section 13 Rent Act.” 14. When we go through the statement of landlord Dr. Partap Singh, it is no where the case of the landlord that closing the business of cement, chips and ply, the tenant had started new business of selling glass, paints and hardware items. From cojoint reading of pleadings of the parties as also statement of petitioner-tenant Rajesh Kumar Garg, it is clearly discernible that the tenant in addition to selling of cement, chips and ply in the shop is also selling glass, paints and hardware items. From cojoint reading of pleadings of the parties as also statement of petitioner-tenant Rajesh Kumar Garg, it is clearly discernible that the tenant in addition to selling of cement, chips and ply in the shop is also selling glass, paints and hardware items. It is, thus, not a case of change of user but sale of additional items while using the shop for the purpose of sale of cement, chips and ply, for sale of which items the shop was taken on rent. 15. Counsel for the respondent-landlord on the other hand referring to Clause 4 of the Rent Note Ex.P2/X has claimed that the tenant could not have used the premises for any other purpose and in the face of this prohibitory clause in the rent agreement, by sale of glass, paints and hardware items even with cement, chips and ply, the tenant has incurred liability of eviction. 16. Clause 4 of the Rent Note (Ex.P2/X) for ready reference is reproduced as under:- “I will sell cement, chips and ply in the shop taken on rent and I will not use the same for any other purpose.” 17. When it is a conceded fact that cement, chips and ply for sale of which the shop was taken on rent, are continued to be sold, it cannot be said that the shop has been put to “any other purpose” . Though sale of glass, paints and other hardware items is not specifically mentioned in the clause of Rent Note wherein sale of “cement, chips and ply” is specifically recited, it does not mean that there is any prohibition for selling of these items along with the items which have specifically mentioned as permissible. The shop is being used for the purpose of carrying on the business of sale of cement, chips and ply etc. only and it cannot be said that it is used for any other purpose. 18. If we go by the general and prevalent ambit and scope of business of sale of cement, chips and ply, there is no denying fact that sale of glass, paints and other hardware items is not different, set apart and distinct from the business being carried out by the tenant in the shop in dispute particularly, when there is no prohibition inherent or inbuilt in the rent note regarding sale of these items. Reference at this stage needs to be made to a Full Bench judgment of this Court reported as 1984 A.I.R. 133 (Punjab) titled Sikander Lal Versus Amrit Lal where making of thread by a card machine was held to be a part and parcel of the handloom business. It was held that if premises had originally been leased for a specific purpose, then any subsequent use thereof which is part of the ancillary to the said specified purpose, would not amount to change of user within the meaning of Section13 of the Act. 19. In this judgment, it was specifically held that any business ancillary to the specific original business would have been included to give meaningful indent of the provision. Relevant portion of para No.12 of the referred judgment is reproduced as below:- “12. Equally, it seems to emerge from a long line of authorities that where the subsequent use of the premises is merely ancillary to the specific original purpose then also it would imply, no change of user within the meaning of the statute. If by custom or convention or on the finding of the Court it can be held that the added use of the premises is ancillary to the main test of being a part of the original purpose would thus be that if it is ancillary thereto, it would still not come within the mischief of the statute.” Relevant provision of Section 13 of the Act for ready reference is reproduced as below:- “13.(1) XX XX XX (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 application, is satisfied:- XX XX XX XX (ii) that the tenant has after the commencement of this Act without the written consent of the landlord - (b) used the building or rented land for a purpose other than the for which it was leased , (iii) XX XX (iv) XX XX (v) XX XX the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied, he shall make an order rejecting the application; *****” 20. Going by the ambit and scope of clause (b) of Section 13(2)(ii) of the Act, it is abundantly clear that admittedly sale of cement, chips and ply etc. is continuing as such but additional items such as glass, paints etc. are also being sold right from the very beginning as per testimony of Dr. Partap Singh. 21. In Jagdish Lal Versus Parma Nand, 2000(1) R.C.R.(Rent) 381 Hon'ble Supreme Court of India had verdicted in para Nos.14 and 18 as under:- “It will thus be seen that mere change of business does not amount to change of user within the meaning of the Act. The philosophy behind this proposition seems to be that a shop which is meant to be used exclusively for commercial purposes must be used for that purpose. If the tenant has started a business in that shop and that business does not succeed and it, does not bring in sufficient monetary returns to enable him to earn his livelihood, he would naturally abandon that business and start a new venture. The new venture may not be the same which was initially carried on. It will be permissible only to a limited extent, that to say, if the tenant was permitted to sell his goods and the shop was meant as an outlet for the goods manufactured by him elsewhere, he cannot start the manufacturing process in the shop itself. It was for this reason that this Court in Ram Gopal Versus Jai Narain and others, 1995 Supp.(4) SCC 648, which again was a case under this Act, held that where a premises were demised for running a shop, the tenant cannot legally install an “Atta Chakki and Oil Kolhu” on the premises as it would amount to a change of user.” X X X X “On a consideration of these decision, it comes out that where the new business started by the tenant in the premises let out to him was an allied business or a business which was ancillary to the main business, it would not amount to change of user. It is true that where a premises is let out for commercial purposes, carrying on of a new business activity therein would not change the nature of the building and it would still remain a commercial building. But that is not enough. It is true that where a premises is let out for commercial purposes, carrying on of a new business activity therein would not change the nature of the building and it would still remain a commercial building. But that is not enough. Having regard to the provisions of the Act and the intendment of the Legislature in providing that the tenant would not use the premises for a purpose other than that for which it was let out, the new business should either have some linkage with the original business, which under the agreement of lease the tenant was permitted to carry on, or it should be an allied business or ancillary to that business.” 22. Applying this law, by no means sale of glass and hardware items in addition to the sale of cement, chips and ply can be construed to be change of user of the premises. 23. Looking from another angle, there is absolutely no evidence before the Rent Controller to come to a conclusion that by sale of glass, paints and hardware items etc. in addition to cement, chips and ply, there is any impairment or deterioration in the premises so as to diminish, utility or value of the premises. Rather, the Rent Controller has very elaborately discussed this aspect to come to a conclusion as under:- “The petitioner Dr. Partap Singh has only examined himself but has failed to prove that whether the value of the shop is reduced. No witness i.e. Building Expert has been examined to prove that by the change of user, the value of the shop is reduced.” XXX XXX XXX “The petitioner has also failed to prove that damage has been caused to the adjoining shops in question. The petitioner also failed to examine the Building Expert to prove that the value of the shop has been reduced. I am also of the view that the shop is in the same condition since it has been taken on rent by the respondent/tenant.” 24. Thus on the issue Nos.4, 4-A and 4-B, findings returned by the Appellate Authority that it was a change of user of the premises are neither correct on facts nor in law and thus are reversed. 25. Thus on the issue Nos.4, 4-A and 4-B, findings returned by the Appellate Authority that it was a change of user of the premises are neither correct on facts nor in law and thus are reversed. 25. So far as ground of eviction on non-payment of arrears of rent is concerned, though the landlord had pleaded increase of rent from Rs.650/- to Rs.1,400/- per month but had neither produced any documentary evidence nor acceptable oral evidence to prove the same. Landlord, Dr. Partap Singh going by his pleadings had claimed that more floor area had been provided to the tenant in the shop in dispute and concomitantly rate of rent was increased to Rs.1,400/- w.e.f. 1.9.1990; corroborative evidence conspicuously is missing. Rather, after appreciation of entire evidence produced by the parties, it is clear that had it been the position, the landlord was to establish that there was increase in the size of the shop and that there was concomitant commensurate increase in the rent payable. Admittedly the shop was taken on rent on 1.11.1989. There are no circumstances to reveal that in less than one year i.e. in September, 1990 the shop had been enlarged in its floor area. Then, there was hardly any occasion for increase of rent from Rs.650/- to Rs.1,400/- per month. 26. Receipt Ex.R3 showing payment of Rs.1,400/- for October, 1990 also has not been properly proved. Plea of the landlord of increase to rate of rent from Rs.650/- to Rs.1,400/- w.e.f. 1.9.1990 is neither convincing nor acceptable because rent continued to be paid @ Rs.650/- per month even for subsequent months. If rent had been increased to Rs.1,400/- per month, then there was to be consistent payment of Rs.1,400/- as rent per month. There is absolutely no explanation coming from the landlord that if the rent had been increased, why payment of rent @ Rs.650/- per month continued to be made by the tenant and accepted by the landlord consistently thereafter. In short, except for rent of October of Rs.1,400/-, which receipt is claimed to be false and fabricated by the tenant, there is nothing to substantiate the claim of the landlord. Genuineness of receipt Ex.R3 in view of past and future conduct of the parties in payment and acceptance of rent @ Rs.650/- is totally eclipsed. 27. In short, except for rent of October of Rs.1,400/-, which receipt is claimed to be false and fabricated by the tenant, there is nothing to substantiate the claim of the landlord. Genuineness of receipt Ex.R3 in view of past and future conduct of the parties in payment and acceptance of rent @ Rs.650/- is totally eclipsed. 27. It would be worth notice that the landlord had approached the Civil Court for a decree of possession on the ground of non-payment of enhanced rent. The said suit was dismissed vide judgment and decree dated 23.1.1991 and the appeal filed against that judgment and decree was also dismissed on 27.2.1998 by the Addl. District Judge, Patiala on 27.2.1998. There being no covenant between the parties to pay house tax as well, the tenant was not liable to pay the same in absence of proof thereof. Pleadings cannot be substitute of proof. Sweeping statement of landlord Dr. Partap Singh is only self supportive. In absence of any corroborative evidence, rate of rent cannot be adjudicated to be Rs.1,400/- per month. Sequelly, it is found that the findings of the Rent Controller returned on issues Nos.1 to 4 against the landlord had casually and abruptly been reversed by the Appellate Authority. Such reversal of findings has no factual or legal support. Sequelly findings on issues No.1 to 4, 4-A and 4-B returned against the tenant and in favour of the landlord by the Appellate Authority are reversed in favour of the tenant. Sequelly, accepting the revision petition, impugned order of the Appellate Authority is reversed and order of Rent Controller is restored. As a conclusion, the Rent petition is dismissed.