Bhagwat Parshad and another vs Smt. Parmeshwari and another

J.V. Gupta, J.—This is landlord''s petition in whose favour eviction order was passed by the Rent Controller but was set aside in appeal.

The landlord Bhagwat Parshad sought the ejectment of his tenants from the demised premises which was rented originally to Nanak Chand Harijan on a monthly rent of Rs. 7. The said Nanak Chand died on 1.1.1975 and thereafter his widow Smt. Parmeshwari and bis son Sher Jung continued in occupation on the same terms as tenants. According to the landlord, the tenants had changed the user of the premises in question and had started using the same for residence without his authority. It was also maintained that the tenants had also started tying a Jhota (he buffalo) in the demised premises and has thus materially impaired the value and utility of the demised premises. The tenants denied the said allegation of the landlord. According to them, the premises in question were residential building. Nanak Chand took the same for his residence about thirty years ago from Shri Ram Sarup, the father of the present landlord bhagwat Parshad. It was also pleaded that Nanak Chand used to have a Jhota and a cart and since then his son is also having the same.

The learned Rent Controller found that the tenants have changed the user of the premises in dispute. Since the premises was described as a shop throughout and, therefore, the same was meant for doing business. Since the tenants are residing therein it amounts to change of user. In view of this finding eviction order was passed on 29.9.1980. In appeal, the Appellate Authority reversed the said finding of the Rent Controller and came to the conclusion that there was no change of user as alleged by the landlord. Consequently, eviction order was set aside.

Learned Counsel for the Petitioner submitted that it has been found as a fact by both the authorities below that the demised premises is a shop and it is so mentioned even in the three rent notes produced on the record. Thus, argued the learned Counsel, if the demised premises was a shop then it will be deemed to have been let out for business purposes. Since admittedly the tenant is residing therein it amounts to change of user from one category to another'' that is, from non-residential to residential. Thus, argued the learned Counsel, the view taken by the Appellate Authority in this behalf was wholly wrong and illegal whereas the learned Rent Controller rightly found that there was change of user and the tenants were liable to ejectment on this ground. In support of his contention, he referred to the Full Bench judgment of this Court, reported in Des Raj Vs. Sham Lal, . He also referred to Mohammad v. Mst. Jannat Bi 1971 R.C.J. 1.

On the other hand, learned Counsel for the tenants submitted that from the very inception of the tenancy the tenant has been residing therein as well as carrying on his business. Originally Nanak Chand was a cobler and, therefore, he was also residing in the demised premises as it consists of three Khans. Later on, Nanak Chand changed his business from cobler to washer man and he has been continuing therein as such. According to the learned Counsel, the tenant was a petty cobler and, therefore, he was not expected to live separately particularly when the demised premises consisted of three Khans. In support of his contention, he referred to Davinder Nath and Ors. v. Davinder Nath Dhanda 1987 H. R. R. 678 and Bent Singh and Ors. v. Ram Chand 1980 (2) R.C.R. 166.

I have heard the learned Counsel for the parties and have also-gone through the relevant evidence on the record. According to the averments made in the ejectment application, the tenants have changed the user of the premises and have started using it for residence without any authority of the landlord. It means that Nanak Chand, the original tenant was not residing therein which fact has not been proved by any cogent evidence by the landlord. Rather, the Appellate Authority has referred to the statement of AW 4 Sohan Lal who has stated that Nanak Chand used to reside in the demised premises and he also used to do cobler''s work therein. It, therefore, appears that from the very inception of the tenancy Nanak Chand, the original tenant, had been residing in the demised premises which consists of three Khans and also been doing his business of a cobler and later on as a washerman. It is quite surprising that in the three rent notes produced on the record, Exhibits P-1 to P-3 though the premises is described as shop but it has nowhere been mentioned that for what purpose the same was being let out to the tenant Nanak Chand. If it is proved by the tenant that from the very inception of the tenancy the same was being used for residence as well as for business then it could not be successfully argued on behalf of the landlord that there was any change of user. The requirement of the statute, that is Section 13(2)(ii) of the East Punjab Urban Rent Restriction Act(hereinafter referred to as the Act), is that if the tenant without the written consent of the landlord uses the building for a purpose other than that for which it was leased, he is liable to ejectment. As observed earlier, in the there rent notes, referred to above, no purpose has been given for which the premises were let out. From the evidence it has been found as a, fact by the Appellate Authority that from the very inception of the tenancy the same is being used for residence as well as for business. That being so the question of change of user as contemplated by the said provision does not arise. The Full Bench judgment, referred to above, has no applicability to the facts of the present case. Therein the question referred was as to "whether the identification of a demised premises as shop in the lease-deed, which otherwise is silent in regard to the purpose, per se, spells oat the purpose for which the premises in question is leased out or not. The question was answered therein: The premises were described to be a shop but was being used as a godown and, therefore, it was held that "the tenant had changed the user and was liable to be evicted in terms of Section 13(2)(ii)(b) of the Act."

In the present case, as observed earlier, though the premises are described as a shop throughout in the rent notes as well as otherwise but from the very inception of the tenancy the ame are being used for residence as well as for business and, therefore, there being no specific purpose given in the rent notes, the question of change of user by the first tenant subsequent to the tenancy did not arise as such. In this view of the matter I do not find any illegality or impropriety in the impugned order as to be interfered with the revisional jurisdiction. Consequently this petition fails and is dismissed with no order as to costs.