Deep Chand Dhobi vs Devinder Parshad

J.V. Gupta, J.—This is tenant''s petition against whom the order of ejectment from the two shops in dispute has been passed on the ground that there is a change of user.

It is the admitted case of both the sides that Deep Chand is a tenant under landlord Devinder Parshad in respect of two shops situate at Delhi Road, near Churamani Hospital, Hissar, against a monthly rent of Rs. 32/-. The landlord sought the ejectment of his tenant on the grounds that he was in arrears of rent; that the tenant has changed the nature of the user of the building i.e. instead of using it as a shop, he was using the same as his residence; that the tenant has started operating a Bhatti, as a result of which damage has been caused to the building and lastly that the existence of Bhatti is a source of nuisance to the neighbours.

The allegations contained in the application for ejectment were controverted. It was admitted by the Petitioner that he was tenant in the two shops at a monthly rent of Rs. 16/- each, which includes house tax. The tenant-petitioner further averred that he tendered the rent with interest on the first date of hearing. He further stated that he is a dhobi by profession and the unit was taken from the very beginning for residence and for washing of clothes. The building was never taken for business purposes.

The only ground which prevailed with the Rent Controller was that the tenant was liable to be ejected from the shops in dispute on account of the change of user. All other grounds were negatived. Consequently, an order of ejectment was passed against the tenant. In appeal the learned Appellate Authority affirmed the said finding of the Rent Controller and thus maintained the order of ejectment passed in favour of the landlord. Dissatisfied with the same, the tenant has come up in revision in this Court.

The Learned Counsel for the Petitioner vehemently contended that admittedly the tenant-petitioner is a dhobi by profession and he is still carrying on that business in the premises in dispute. Along with that he also resides therein, though major part of his family lives with his son in the Police Lines, who is employed there. Thus argued the Learned Counsel, that the purpose for which the premises were let out is still there. It is only in addition thereto that the tenant is also living therein, and, therefore, the charge that he has changed the user and was liable to ejectment, was not tenable. In support of his contention he has referred to Bant Singh and Ors. v. Ram Chand 1980 (2) R.C.R. 166; Sant Ram Vs. Rajinder Lal and Others, and Mrs. Atma Ram and Mr. Atma Ram, Advocate v. Kanwar Mahinder Singh (1976) 78 P.L.R. 410.

On the other hand, the Learned Counsel for the landlord-respondent, vehemently contended that once it is found that the tenant is residing therein in the premises in dispute, which were admittedly shops, it amounts to change of user and the tenant was liable for eviction on that ground. In support of his contention he referred to a Full Bench judgment of this Court reported as Des Raj v. Sham Lal (1980) 82 P.L.R. 647.

I have heard the Learned Counsel for the parties and have also gone through the case law cited at the bar. It has been found by the Authorities below that the tenant is still doing his business of washerman i.e. doing pressing etc. in the premises in dispute. Along with that, according to the finding of the Authorities below, the tenant is also residing therein. Thus from the finding itself, it has not been found that the tenant has put the premises in dispute exclusively for residence. According to the learned Appellate Authority in the present case, a specific plea was raised by the tenant in his written statement that he took the premises on rent not for business purpose This observation is not borne from the record. In the written statement the specific plea taken was that "the Respondent is Dhobi by profession. The unit was taken from the very beginning for residence and for washing of clothes. The building was never taken for business purposes" Thus it was specifically pleaded that it was taken for residence as well as for washing of clothes For a Dhobi, washing of clothes is his business. When he staled further that the building was not taken for business purposes, it only meant that it was not for "Karobar-dukandari", as alleged in the ejectment application. Thus from the pleadings it was clear that the stand taken by the tenant was that the premises were taken for washing of clothes and for residence, which business he is doing at present, as found by both the Authorities below.

Besides, one of the shops was rented out in the year 1972, whereas the other shop was rented out in the year 1966-67. It is the common case of the parties that the shop given in the year 1972 was rented out because the tenant wanted to celebrate the marriage of his daughter. Later on, he did not vacate the shop and, therefore, he was allowed to continue as tenant on the same rent as he was paying for the first shop. This also goes to prove that at least the second shop was never given for the business purposes, as alleged. In any case, it is hardly material for the purposes of this case, when, admittedly, the tenant is a dhobi and the business of dhobi is still being carried on in the premises in dispute All other grounds alleged by the landlord were negatived by the learned Rent Controller and were never agitated before the learned Appellate Authority. The Full Bench judgment relied upon on behalf of the landlord is not at all applicable to the facts of the present case Rather it has been observed therein that if a demised building, which was a shop in that case, was later on came to be used exclusively as residential building, or godown then that would tantamount to the change of user. In the present case the demised premises, which are described as shops, were never used exclusively for residence and thus it does not tantamount to the change of user. The change of user pre-supposes that the use for the purpose of which the premises were let out was not being performed therein and the building was being used for some other purpose. That is not the position in the present case. Thus, on the finding given by both the Authorities below, no order of ejectment could be passed against the tenant on the ground that there was a change of user. As observed earlier, one of the grounds taken by the landlord was that there has been damage to the building, but this plea was never accepted by the learned Rent Controller.

In view of the above discussion, this petition succeeds. The orders of the authorities below are set aside and the application for ejectment is dismissed with costs.