Chhaju Ram vs Tulsi Dass and another

Rajendra Nath Mittal, J.—This Revision has been filed by Chhaju Ram, landlord, against the judgment of the Appellate Authority under the East Punjab Urban Rent Restriction Act, 1949 (herein-after referred to as the Act), dated February 7, 1973.

Briefly, the case of the petitioner is that he purchased the shop in dispute from Harish Chander on August 14, 1968. Respondent No. 1, Tulsi Dass, was a tenant in the premises in dispute under Harish Chander on a rent of Rs. 24/- per mensem. Consequently, he became tenant under him after purchase of the property in dispute. The petitioner filed the application for ejectment of the shop inter alia on the ground that he had started using it for a purpose other than for which it was let and that he had sublet it in favour of Khan Chand respondent No. 2, without his consent in writing. Tulsi Dass contested the application and stated that he was a partner in the firm known as ''Moti Ram Ram Lal'', which had been carrying on the business of purchase and sale of cloth at Rewari at the inception of the tenancy in his favour by Harish Chander and that the firm had been using the shop for storing the cloth since then. He denied that the shop had been sublet by him to Khan Chand. Some other pleas were also taken but they are not necessary for the disposal of the present petition, as those were not pressed before the Appellate Authority. The Rent Controller held that there was no change of user and that the tenants had not ceased to occupy the shop for a continuous period of four months. Consequently he dismissed the petition. Chhaju Ram landlord, went up in appeal before the Appellate Authority who affirmed the findings of the Rent Controller and dismissed the appeal. He has come up in a revision petition against the judgment of the Appellate Authority to this Court.

The only point urged before me is that respondent No. 1 had been using the shop in dispute for storing the foods and that will amount to change in the user of the property as he had taken the premises for the purposes of running a shop. It is an admitted case of the parties that the sale of cloth was not being carried on in the shop in dispute by any member of the firm Moti Lal Ram Lal. A Local Commissioner was appointed by the Rent Controller who inspected the shop on April 8, 1969. In his report he has stated that the sale of cloth was not conducted in the shop as there was neither a cash box nor the cash memos nor any of the form necessary under the Shops Act. There was also no gaddi (seat for the saleman) in the shop. The four walls, the roof and the aalas inside the shop were all dust stricken and it appeared that no one had been regularly sitting therein and that it was not being cleaned regularly. About 50-60 thans of coarse cloth only were lying, in the shop. The Commissioner also observed that he was of the firm view that the shop in dispute remained closed and not being used for business purposes. The witnesses produced by the petitioner also deposed about the aforesaid facts. After going through the report and the statements of the witnesses, it is clearly established that the premises in dispute were being used as a godown by respondent No. 1. This conclusion has not seriously challenged by the Learned Counsel for the respondent. The only question that arises for determination is as to whether in the aforesaid circumstances it can be held that there was change of user regarding the shop in dispute. In the rent note, it is mentioned that the premises had been taken as a shop. The word ''shop'' has not been defined is the Act, in Aiyer''s Law Terms and phrases, sixth Edition, the ''shop'' is described as ''a room or a place or a building where goods are sold''. This word has been been defined in Stround''s Judicial Dictionary, Fourth Edition, Volume V, as ''a place where a retail trade is carried on''. The definition of word ''Godown'' in Aiyer''s Law Terms and Pharases is ''a warehouse''. The Learned Counsel for the respondent argues that in a shop the goods are stored and sold. According to him, in case goods are stored in a shop, it cannot be said that there is a change of user. In support of his contention, he has placed reliance on the observations in Civil Revision No. 698 of 1959 (Kishan Lal v. Madan Gopal) decided on August 12, 1960, and Civil Revision No. 237 of 1966 Chhabil Dass v. Fateh Chand C.R. No. 237 of 1965, decided on November 25, 1966. In the fatter judgment, Mehar Singh C.J. placed reliance on Kishan lal''s case. No doubt, the observations in the aforesaid cases help the respondent. On the other hand, the Learned Counsel for the petitioner has referred to Civil Revision No. 645 of 1961 (Balwant Singh v. Brij Mohan 1979 R.C.R. 692,) 1975 R.C.R. 692) decided on March 16, 1962. In that case, the shop was let for a factory of handlooms and subsequently the manual power was replaced by the electric power. It was observed by Duiat, J., that while the shop was let, it was mentioned that the purpose of letting was to set up Khaddis be handlooms which was a different kind of activity. Consequently, the learned Judge held that there was a change of user. The Learned Counsel for the petitioner has also referred to another Civil Revision No 654 of 1962 (Pandit Ram Swarup v. Om Parkash C.R. No. 913 of 1972) Cr. No. 913 of 1972.) decided on September 6, 1963, where the tenant was carrying on the business of electric goods and paints. Subsequently, he abandoned, the old business and started using the premises as a Halwai Shop. Dulat, J., who decided the case, held that there was change of user of the property After perusing the aforesaid judgments. I find that the question involved in the present case is not free from difficulty. The question is also of such a nature which may very often arise. In the circumstances it is desirable that the case may be referred to a Division Bench. The papers of this case may be placed before my Lord, the Chief Justice, for appropriate orders.

JUDGMENT OF DIVISION BENCH

K.S. Tiwana, J.—The facts of the case which led to this reference to the Division Bench are that Chhaju Ram petitioner purchased the shop in dispute which is situated at Rewari from Harish Chand, in which Tulsi Das respondent was a tenant at a monthly rent of Rs. 24/. After the acquisition of the shop by the petitioner, the respondent became a tenant in these premises under him. The petitioner sought the eviction of the respondent from the Court of the Rent Controller on the ground that the respondent had sublet the premises and that these were being used for a purpose other than the one for which these bad been rented to him. The respondent resisted the eviction by denying the subletting and the change of user. He pleaded that he was a partner in firm Motiram Ramlal doing the business of purchase and sale of cloth at Rewari and this firm from the inception of the tenancy was using the demised premises for storing cloth. Other pleas which were raised before the Rent Controller were not pressed and for that reason need not be taken notice of. The leaned Rent Controller returned a finding against the petitioner about the change of user and subletting of the demised premises. These findings were affirmed in appeal by the appellate authority Dissatisfied with the adverse verdict of both the subordinate Tribunals, the petitioner filed this revision in this Court.

Both the Rent Controller and the appellate Court found as a act and the parties are not at variance that the premises in dispute are being used as a godown by the respondent. In the Chambers before my learned brother R.N. Mittal, J. it was urged on behalf of the petitioner that in the rent note the premises are mentioned as a ''shop'' which has not been defined in the East Punjab Urban Rent Restriction Act, 1949 (East Punjab Act No. III of 1949), hereinafter referred to as the Act. ''Shop'' in ordinary parlance means a place where business of purchase and sale of goods on retail or price is done. According to the petitioner, a ''godown'' is not the same thing as a ''shop''. Thus where a ''shop'' is used as a ''godown'', there is change of user. To support this argument, the petitioner cited Civil Revision No. 645 of 1961 (Balwant Singh v. Brij Mohan C.R. No. 645 of 1961) decided on March 16, 1962 and Civil Revision No. 654 of 1962 (Ram Swarup v. Om Parkash C.R. No. 654 of 1962), decided on September 6, 1963. The Learned Counsel on behalf of the respondent after citing Civil Revision No. 698 of 195 (Kishan Lal v. Madan Gopal C.R. No 698 of 1959) decided on August 12, 1960 : and Civil Revision No. 137 of 19659 (Chhabit Dass v. Faten Chand C.R. No. 237 of 196) decided on November 25, 1966, argued that if a shop keeper stores goods or uses the ''shop'' as a ''godown'', then the user is not changed. R.N. Mittal, J. referred the case to a larger Bench observing ''after perusing the aforesaid judgments I find that the question involved in the present case is not free from difficulty the question is also of such a nature which may very often arise. In the circumstances it is desirable that the case may be referred to a Division Bench''. This is how the case came to be laid before us.

The question for determination before us is whether a ''shop'' as it is commonly understood can be used as a ''godown'' for storage of goods alone and if it is so used, then does that amount to putting it to a different use than ore for which it was let out as contained in section 13 (2)(ii)(b) of the Act.

The rent note executed between the parties is a charter of their rights. If the purpose or use for which the demised premises is rented, is set out after agreement by the parties, in the rent note, then it does not pose any problem. If on the other hand, it does not specifically state the purpose of letting, then the Courts or the Tribunals are called upon to decide the matter in controversy by interpretation of the statutory definition or, in the absence of such a definition by reference to the ordinary dictionary meanings or their meanings as are commonly understood in business, trade or in the locality.

In the Act, the word ''shop'' has not been defined. We have, therefore to resort to its ordinary dictionary meaning Shri Gokal Chand Mittal, Learned Counsel for the respondent, urged that the word ''Shop'' has been defined in section 2(xxv) of the Punjab Shops and Commercial Establishments Act 1958 (hereinafter referred to as the 1958 Act), and wanted to import the definition of this word in that Act for application to the case in hand. In the 1958 Act, the definition has been given for the purpose of that Act which has been enacted to regulate the conditions of work in the shops and commercial establishments. Any definition of the word ''shop'' given in the 1958 Act cannot be extended beyond the limits of that Act for application to other statutes, as each statute is designed to meet a distinct and particular purpose and the words used in each statute have to be read and interpreted in the context of that statute. It is neither proper not plausible to borrow the definition from other statutes when the provisions of both the Acts are not in pari meteria. We, therefore, cannot fall back upon the definition of the word ''shop'' in the 1958 Act and have to resort to the ordinary dictionary meaning of the words ''shop'' and ''godown'' and also as they are commonly understood by the people in general.

To appreciate whether a ''shop'' means and includes a ''godown'' we have to look for the meanings of both the words in the different dictionaries for purposes of refence.

In the ''Concise Oxford Dictionary''. (4th edition) the meanings of the word ''shop'' are given as ''building, room etc. for retail sale of some commodity'' In ''Chambers'' Twentieth Centrury Dictionary'', (revised 1964 edition), the meanings of the word Shop'' are given as ''a building or room in which goods are sold''. In ''Webster''s New Twentieth Centrury Dictionary'', Volume II (second edition), the meanings of the word ''shop'' are given as ''a place where goods are sold at retail''. According to ''Stroud''s Judicial Dictionary'', third edition the word ''shop'' implies a place where a retail trade is carried on. In ''law Lexicon of British India'' 1940 edition, by Aiyar ''shop'' is stated to be ''a place kept and used for the sale of good''. It is further stated in the book that "the word ''shop'' implies a place where a retail trade is carried on."

In Aiyai''s Law Lexicon the word'' ''godwon'' is defined as a store, a warehouse. In Webster''s New Twentieth Century Dictionary''. Volum I, Second edition, the word ''godown'' is meant as ''in India, China, Japan etc. a warehouse. In the ''Concise Oxford Dictionary'', fourth edition the meanings of this word are given as ''warehouse in part of Asia, esp. India''. The ''warehouse'' has been defined in ''Law Lexicon of British India'', 1940 edition, as, a warehouse is, properly speaking, a building used for the purpose of storing goods in ported at a reasonable rent. ''According to ''Stroud''s Judicial Distionary'', third edition," a warehouse'', in common parlance, certainly means a place where a man (sic) or keeps his goods which are not immediately wanted for sale". In ''Webster''s New Twentieth Century Dictionary'', Volume II, second edition, the meanings of the word are given as a building where whares, or goods, are stored, as before being distributed to retailers a storehouse.''

The word ''shop'' has not been defined in the Act. Were not take upon ourselves to attempt for giving any comprehensive meaning or definition to this word, but we are to take its ordinary dictionary meanings for the purpose of the Act, so that the dispute between the landlords and the tenants may be resolved regarding the change in the user of the tenanted premises.

The meanings of the word "shop" derived from the standard, legal and educational dictionaries quoted above are ''a building or a room where goods are sold for price on retail. These meanings are quite distinct from the meanings of the word ''godown'' or a ''warehouse, which means a place for storing the goods and according to Stroud''s Judicial. Dictionary, those goods are stored which are not immediately wanted for sale. The Learned Counsel for the respondent has argued that in the cases of Kishan Lal and Chhabil Das, wherein the premises were rented as ''shops'' but had been used as ''godowons'' it was not a change of the user as anticipated by section 13(2)(ii) (b) of the Act. In Kishan Lal''s case, the tenant was an Arhti or a commission agent in foodgrains. After taking the shop on rent, he stored foodgrains in that shop for the purpose of sale. In that case, G.D. Khosla, C.J., observed that'' the storing of goods is not vastly different from the use to which a shop is put. The tenant is an Arhti or commission agent, and there is nothing extraordinary or harmful in his storing wheat in the premises which were let it as a shop''. It was further observed in the same judgment ''in the present case the rent note did not specify the purpose, and it may, therefore be assumed that the shop could be used in the usual manner in which shops are used. Shops are used both for the sale of goods and for the storing of goods. In Chhabil Das''s case, the demised promises were constituted of three parts The landlord retained the portion of the shop with him and rented out the two front portions to the tenant. The tenant used those as a godown and carried on his business in a different premises. Mehar Singh, C.J., in those circumstances, observed:--

The argument on the side of the applicant is that Kishan Lal''s case completely covers the facts of the present case, which in ray opinion it does. The rent note in the present case, as in Kishan Lal''s case does not show that the shop was to be used as a shop and was to be kept open according to the hours settled in accordance with the provisions of punjab Act 15 of 1858. It merely let out the first two rooms of the shop to the applicant, leaving the third room for the user of the respondent. The user was not described. But it may be assumed that is a shop, the parties intended that the applicant was going to use the first two rooms as a shop. The question then is whether user of as a godowo is such user as to attract section 13(2)(ii)(b) of the Act and the answer given to this by the learned Chief Justice in Kishan Lal''s case is in the negative. I agree with that.

In Chhabil Das''s case, there was no discussion on the merits of the distinction between a ''shop'' and a ''godown''. Mehar Singh, C.J., simply followed the decision in Kishan Lal''s case. Shri Gokal Chand Mittal, Learned Counsel for the respondent, has argued that in Kishan Lal''s case the above finding was returned, after assuming that the intertion of the parties was that the premises should be used as a ''shop'' and not for the purpose wholly different to the purpose to which a ''shop'' can be put. With due regards to the eminent Judge deciding Kishan Lal''s case, we are unable to persuade ourselves to agree with the observations which are too wide. Neither from literal not any practical point of view, such an import ran he given to the word ''shop'' to enlarge its meanings which are brief and not so comprehensive as given in Krishan Lal''s case or intended to be enlarge by Shri Mittal. We concede to the argument only to the extent that a part of a "shop" may to a limited extent, be used for storage of goods''. This extent would only be limited for the purpose that the goods meant for sale at the ''shop'' are stored in it and this in many cases becomes necessary because sale may not be effectively carried out all the goods are not stated therein but have to be brought from a distance. In that situation, the ''shop'' cannot be equated with a ''godown'' because the dominant purpose of the shop is the sale of the goods and not their storage. A servient purpose cannot change the compley of the dominant purpose. If goods are only stored and the sale is not at that place but at different premises, then it will be a ''godown'' and cannot fall within the ordinary dictionary meanings of the word ''shop''. The purpose of storing goods at a premises is different from the sale of those goods. It is understood as such even incommon parlance by the ordinary people and trading community. Thus, ''Shop'' means a shop'' and ''godown'' meands a ''godown'' and the words cannot be intermixed or alternatively used. When independently used these purposes do not overlap each other.

It was urged before us that Kishan Lal and Chhabil Das cases have held the filed for a long time, i.e. since 1960 and on the principle of state decisis it would not be proper to depart from the law laid down in those cases. this Court in various cases has pronounced upon the change of user and the view which we are expressing is not inconsistent with the decisions of this Court. In Tarlok Singh v. Seth Rama and Kidar Nath Trust 1979 R.C.R. 692, the facts were that the landlord had let out the shop for carrying on the business of carpentry. The tenant installed a lathe run on power in the same premises and urged that these were installed for rounding the logs of wood. Mr. M.R. Sharma J., in that case, held that the installation of these electrical appliances was a change of user of the premises. Similarly, in Civil Revision No. 913 of 1972 (Mehta Baldev Datt v. Puran Singh, C.R. No. 913 of 1972) decided on February 21, 1973, the premises were rented out for tailoring business. The tenant started work by installing a machine on power. D.K. Majahan J., held that the user of the building had been changed. In Civil Revision No. 416 of 1950 (Cement Pipe Factory v. Daulat Ram Narula C.R. No. 416 of 1950), decided on January 1, 1951 the premises were initially leased out for working handlooms. The tenant installed the looms operated by power in those premises In that case also, it was held that the tenant had put the demised premises to a different use than the for which it was let out as envisaged by section 13(2)ii)(b) of the Act. The ratio of the judgments cited above shows that this Court did not want to put any enlarged meanings to the words commonly used as in the case of ''looms'' and ''power operated looms'' etc. We also do not want to give broad meanings to the word shop to include a ''warehouse'' or a ''godown'' if in those premises no sale, which is the main constitutent of a ''shop'', is being carried on. No other case of this Court or any other High Court was cited before us. With respectful disagreement to the learned Judges deciding Kishan Lal and Cahabil Das'' cases, we hold that the word ''shop'' does not mean or include a ''godown'' for the purposes of section 13(2)(ii)(b) of the Act, and the premises, which are mentioned as a ''shop'' the rentnote, cannot, without the consent of the landlord, be converted into ''godown'' for storing the goods being sold at other premises by the tenant. The words, as discussed above in our view, are distinct having distinct and separate meanings which are well understood in this part of the country and for that matter, in some educational dictionaries, meanings of the word ''godown'' as these are understood in Asia.

After the answer of the legal question against the tenant, we advert to the facts of the case in hand. As referred in the earlier part of the judgment, both the Rent Controller and the appellate authority have returned a concurrent finding to the effect that the premises in dispute were entered as a ''shop'' in the rent note but were being used as a ''godown''. The report of the local Commissioner also suggested the same. This find no of fact has not been contested by the counsel for the parties before us. We had a look at the rent note. Throughout the rent note the premises were mentioned as a ''shop'' Clause 4 of the rent note is "Ye Keh Dukan Mazkoora Par Main Khud Kaam Karunga........" (that in the concerned ''shop'' I will myself do business). From this, the intention of the respondent becomes manifest that he had taken the ''shop'' on rent and that in that shop he was to carry out his own business. He has nowhere in the rent note mentioned that fie was a partner in the firm Motiram Ramlal or that it was taken for the business of that firm The terms of the rent note were clear and explicit and did not leave any scope for the argument that it could be used as a ''godown''.

There is bead roll of authorities of this High Court, some of which have been referred to above, laying down that when the premises have been used for the purpose other than the one for which these were leased, the landlord earns a right to evict the tenant it should suffice to refer only to a Division Bench authority of this Court in Telu Ram v. Om Parkash Garg, ILR (1972) P&H. 528 in which all the case law up to date till the decision of that case was considered.

In view of what has been discussed above, the revision is accepted and the orders of the Rent Controller and the appellate authority dismissing the petition of the landlord-petitioner for eviction of the tenant respondent is set aside. In view of the point of law involved in the case, the parties are left to bear their own costs.

R.N. Mittal, J.

I agree.