Dhanpati and others vs Satish Kumar

D.V. Sehgal, J.—This revision petition is directed against the judgment dated 29.10.1985 passed by the learned Appellate Authority u/s 15 (4) of the Haryana Urban (Control of Rent and Eviction) Act, 1973, (for short the ''Act'') directing ejectment of the tenant-Petitioners from the shop in dispute situated in Jind Mandi. Satish Kumar Respondent had filed an application on 20.12.1978 for ejectment of Sukh Dial from the shop in dispute by invoking the provisions of Section 13 of the Act. He claims himself to be the landlord of the premises in dispute and alleged that Sukh Dial was a tenant therein by virtue of rent note dated 18.7.1957 (Exhibit A 3). It has come during the course of evidence that the Respondent along with his uncle Devi Dial was the owner of the said shop. Later on the Respondent purchased 1/2 share of Devi Dial in the said property vide sale deed dated 20.2.1979(sic) (Exhibit AW1/A) On this basis he claimed the relationship of landlord and tenant between him and Sukh Dial. During the pendency of the application before the Rent Controller, Sukh Dial died and his son Atma Ram was brought on record as his legal representative. Still later Atma Ram also died and the Petitioners herein were impleaded as his legal representatives they having inherited the statutory tenancy from Atma Ram.

The ejectment of the Petitioners was sought by the Respondent inter-alia, on the grounds that the tenant was in arrears of rent; that the shop had been let out for doing business or trade but the tenant had started his residence in a portion of the demised premises and he had also started using the shop for running an industry by installing boring machine Jali manufacturing machine and a machine for manufacturing pegs (Pawas) for the cots, that the tenant had fixed a shutter in the shop by dividing the same into two portions and had thus materially impaired its value and utility. The learned Rent Controller, dismissed the application of the Respondent by holding that neither there was any conversion of user of the premises nor had it been proved that the value and utility of the shop had been materially impaired as alleged. The arrears of rent as claimed in the application had been tendered on the first date of hearing and thus, that ground became non-existent. As a consequence, the claim of eviction made by the Respondent was negatived.

The Respondent filed an appeal before the learned Appellate Authority, which as already mentioned above, succeeded and the eviction of the Petitioners was ordered. This is how the Petitioners have approached this Court by way of the present revision petition.

The eviction of the Petitioners has been ordered on the following grounds which, according to the learned Appellate Authority stand established:

(i) That the tenant fixed an iorn shutter in the shop dividing it into two portions. He changed the floor of the roof and replaced its beams. This amounts to impairing materially the value and utility of the building.

(ii) The tenant has changed the user of the rear portion of the shop for his residential purpose. He started living therein along with his family.

(iii) The tenant converted the user of the front portion of the shop from trade and business to industrial purpose, in that he installed machinery for boring holes manufacturing grills and pegs. He thus, has used the shop for a purpose other than that for which it was leased.

I have heard the learned Counsel for the parties, I have also gone through the record of the learned Rent Controller including the pleadings of the parties and evidence brought on record. I am clearly of the view that the grounds (i) and (ii) on which ejectment of the Petitioners has been ordered have neither been established nor are tenable. In the application u/s 13 of the Act, the Respondent pleaded in paragraph-3 (b) which when rendered into English is to the following effect:

That the Respondent (tenant) has materially impaired the value and utility of the property. He has without authority divided the shop into two portions by installing an iron shutter in between.

It is to be seen that there is no allegation whatsoever in the application that the tenant has changed the floor of the roof or has removed and replaced any of its beams. The evidence led by the Respondent to this effect ought, therefore, not have been entertained and taken into consideration by the learned Appellate Authority. Its finding that the floor of the roof has been changed and its beams have been removed and replaced, therefore, cannot be sustained. As regards, installation of the iron shutter i side the shop, it is educative to refer to the statement of Satish Kumar Respondent himself as A W. 1. He stated in cross-exami-najionthat earlier there ,was no shutter at the place where it has been fixed by the tenant and that the door was without shutter. This shows that the frame of the door was there but it was without shutter. Thus, the installation of the shutter at a place where provision for the same already existed can, in no way, be said to have impaired either the value or utility of the demised premises. It is trite to say that the shutter so fixed can be removed at any time without even a semblance of damage to the shop either on its interior or to its structure. No submission worth consideration could be made by the learned Counsel for the Respondent which can be said to justify the finding recorded by the learned Appellate Authority that the fixing of the shutter by the tenant at the place meant for it amounts to impairment of value and utility of the shop. The finding to this effect recorded by the learned Appellate Authority is, therefore, set aside.

Now coming to ground (ii), it is to be noted that the case of the tenant from the very begining has been that the rear portion of the shop in dispute is being used for residential purpose for more than 15 years, without any objection from the side of the landlord. In fact it has come in evidence consistently through the statements of witnesses produced by the Petitioners that in Jind Mandi, shops have been constructed in such a way that the rear portion of the shops is being used by the shopkeepers for the purpose of residence. This stand of the Petitioners was specifically put to the Respondent when he appeared in the witness box. He conveniently denied for want of knowledge, the fact that the rear portion of the other shops in the Mandi are similarly being used for the purpose of residence It has come in evidence that there is bathroom and a kitchen in the rear portion of the shop which amply brings out that this particular portion is meant for purpose of residence. Section 2 (d) of the Act, inter-alia, defines " non-residential building" as a building being used partly for the purpose of business or trade and partly for the purpose of residence, subject to the condition that the person who carries on business or trade in the building resides there. No doubt, this definition has no bearing on the question whether or not the tenant used the shop for the purpose other than that for which it was leased, yet it would be seen that character of the building has not been changed It was constructed and was meant to be used partly as a shop and partly for the purpose of residence. I am, therefore, of the definite view that the finding of the learned Appellate Authority in respect of ground (ii) also cannot be sustained and is, therefore, reversed.

Now coming to ground (iii), the learned Counsel for the Petitioners has raised the following contentions to assail the findings recorded by the learned Appellate Authority:

(i) No specific purpose for which the shop was let out is mentioned in the rent note Exhibit A3. Therefore, even if it is found that the shop was earlier being used for the purpose of business or trade more specifically for the purpose of sale of wood and timber and later on it has been brought into use for industrial purpose i. e. for the manufacture of grill etc, no case for change of user is made out.

(ii) At any rate, the evidence on record bears out that the industrial activity is not being done inside the shop It is rather being carried on a Phar outside the shop and in the shed in the compound of the Mandi. Thus, there is no change of user of the shop.

(iii) Even according to the case set up by the Respondent, the change of the user of the shop took place prior to the time when he purchased the shop from Devi Dial. The vendor never objected to the change of user The Respondent, therefore, has no cause of action and cannot complain that the shop is being used for a purpose other than that for which it was let put

(iv) The Respondent having full knowledge of the fact that the shop is being used for commercial activities has been receiving rent for the same from the tenant right from the date of its purchase. Thus, he acquiesced in the user of the shop for industrial purpose and, therefore, estopped from bringing cause to the Court on this ground.

I have considered the above submissions but find no force in them As regards, the first contention, no doubt, the rent note Exhibit A3 is silent about the purpose for which the shop was let out. However, the premises in dispute is described as a shop in the rent note. As held by the Full Bench of this Court in Des Raj v. Sham Lal (1980) 82 P.L.R. 647, where the expression ''shop'' is used, the parties would be taken to have used the expression ''shop'' as understood in the common parlance and the meaning given to the same in the dictionaries. ''Shop'' is always used for business or trade as distinct from ''industry''. The industrial activities are always carried on in an industrial shed or workshop. In Sikandar Lal v. Amrit Lal (1984) 86 P. L. R. 1, the Full Bench of this Court observed that the industrial activity of manufacture is, in no way, part and parcel of commercial activity of a mere sale of a commodity. In Tarlok Singh v. Seth Rama Nand Kidar Nath Trust, Amritsar 1977 R. L. R, 113, the tenant had taken the shop on rent for carrying on the business of carpentary. He later on installed an electric motor for running a lathe, a drill machine and a grinder in the shop It was held that the user of the shop had been changed and the tenant was liable to eviction. In Ram Parkash v. Shri Nathu Ram 1984 (1) R. L. R. 509, the tenant had taken the shop on rent for selling cycle parts. Later on he installed machinery and started manufacturing cycle spare parts. It was held that manufacturing of cycle spare parts is virtually an industry whereas the business of selling cycle parts is a business altogether of a different type and change in the user of the shop from the latter to the former purpose comes within the mischief of Clause (b) of Section 13(2: (ii) of the Act

Now coming to the second contention, there is no doubt that in the written statement the tenant stated thus in paragraph-3 (b):

The Respondent is not barred from using the portion of the building in question for the purpose of residence and industry besides the purpose of business In fact most of the buildings situated in Mandi Jind similar to the building in question, are being used in the similar manner i e front portion of the building is used for commercial purpose and the rear portion is used for residential purpose. The Respondent is also using the building in question in this manner which is not all wrong use of the building. The industrial work on the drilling machine and for prepartion of grills is carried on in the portion of the tin shed and phar constructed towards the chowk of Mandi Jind.

During the course of trial, on an application made by the Respondent, the learned Rent Controller appointed Shri Dashrath Singh Advocate as Local Commissioner, vide his order dated 20.12 1978. He was directed to inspect the premises in dispute and to report whether back portion of the premises is being used by the tenant and his family for their residence and further to report whether the tenant had installed one drilling machine and other machines therein. The Local Commissioner submitted his report on 27.12.1978, which is at page 43 of the file of the Rent Controller vide which he inter-alia. reported thus:

In the front portion of the premises in dispute a drilling machine was found installed. Another machine known as the shutter-making machine Patti cutting machine, welding and Kharad machine were also installed therein.

Satish Kumar landlord Respondent during his statement as A. W. 1 categorically stated that the tenant was earlier carrying on the business of timber and wood but he has now installed an industry in the front half portion of the shop he has installed one shutter manufacturing machine one grill machine, peg making and a lathe without his written consent. No cross-examination worth the name had been addressed on the aspect that the machinery is installed outside the shop in the phar and the shed, as pleaded in the written statement. A statement almost on the same lines was made by Ishwar Chand A W. 2. He has stated that the tenant had installed machinery for manufacturing shutters etc. for the last 7/8 years, yet he had not been cross-examined on this aspect and it had not been put to him that the machinery is installed outside the shop and industrial activity is not being carried on inside the shop. No doubt Sumer Chand, R. W. 1 besides Sat Narain and Som Parkash R. W. 3 and R. W. 4, respectively, have stated that industrial activity is being carried on outside the shop. The machinery and the industrial work is carried on inside the shop when it is raining, but their statements are of no consequence when the witnesses produced by the landlord have not been challenged on this aspect. It is therefore to be taken that from the statements of the witnesses of the landlord that machinery is installed inside the shop where manufacturing activity is going on as the same remained unchallenged on the record. I, therefore, reject the second contention.

In support of his third contention, the learned Counsel for the Petitioners relied upon a Single Bench judgment of the Bombay High Court in Shantinath S Ghongade v. Rajmal Uttam Chand Gugale 1979(1) R. C. R. 701 and Smt. Sudershan Kumari v. Anand Kumar Khemka 1986 (1) R.C.R. 668. In Shanti nath S. Ghongade1 s case (supra), no doubt it has been held that where the change of user of the premises has taken place before the purchase of the same by the present landlord and the vendor had not exercised his right to eject the tenant, the purchaser cannot seek eviction of the tenant on the ground of such change of user. But an identical contention did not weigh with the Division Bench of this Court in Telu Ram v. Om Parkash Garg (1971) 73 P.L.R. 1. The Petitioner therein had purchased the shop in dispute from one Jatinder Kishore by means of sale deed dated 9 11 1964. The Petitioner filed a petition for ejectment of the tenant-Respondent from the shop oh Fubruary 16, 1965, on the ground that the shop was given on lease by Jatinder Kishore by means of lease deed dated 18.11.1953. mainly for the purpose of a general store, but the tenant had set up a printing press in the shop without the consent of the landlord. The tenant, no doubt, pleaded that he set up the printing press with the consent of the former landlord Jatinder Kishore but he could not prove such a consent. His eviction was ordered by the Division Bench on the ground of change of user. Sudarshan Kumari''s case is althogether on different facts. The premises in dispute was taken on rent by the firm M/S Maman Chand Sham Sunder Lal. Its partner Anand Kumar Khemka executed a rent note. The plea of the landlord was two fold, firstly, that Anand Kumar Khemka has sub let the premises to M/S Maman Chand Sham Sunder Lal and secondly, that Anand Kumar Khemka had taken the premises for parking his car, but it was being used as s godown by the aforesaid firm. It was held that the firm was in fact the tenant and the premises right from the begining is being used as a godown, to which the owner of the premises from whom the landlady purchased the same had also never objected. The rent note was held to be a more paper transaction. In the present case it shall be noticed that the Respondent was the co-owner of the shop owning 1/2 share of it while the remaining 1/2 share was owned by his uncle from whom he purchased the said share vide sale deed Exhibit AW1/A. Thus, it is not a case where the conversion of user took place when a third person was the owner of the shop. I, therefore, reject this contention also.

For the fourth and last contention, the learned Counsel for the Petitioners relied upon a Division Bench judgment of this Court in Ved Parkash v. Darshan Lal Jain (1986) 90 P. L. R. 90. He contended that since the Respondent had been receiving the rent, having gained knowledge of the fact that the tenant had changed the user of the shop and was thus aware of the continuing breach, the acquieseed in it. He released the tenant from the covenant and granted a licence for the user of the shop for installation of machinery and manufacture Ved Parkash''s case (supra) is clearly distinguishable In that case the grievance of the landlord was that the tenant had removed the wall intervening between the shop in dispute and the adjacent shop which was also in possession of the tenant and had thus, impaired the value and utility of the shop in dispute and was thus liable to eviction on the ground specified in Clause (iii) of Section 13 (2) of the Act The distinction is clearly brought out when we refer to paragraph 11 of the judgment in Ved Parkash''s case (supra) wherein it is observed thus:

It is to be noted that Section 13(2) (ii) provides that where the tenant has after the commencement of the 1949 Act (the East Punjab Urban Rent Restriction Act 1949) without the written consent of the landlord transferred his right under the lease or sublet the entire building or rented land or any portion thereof; or used the building or rented land for a purpose other than that for which it was leased the landlord can seek eviction of the tenant applying to the Rent Controller. At the same time, Section 13(2) (iii) of the Act lays down that where the tenant has committed or caused to be committed such acts as are likely to impair materially the value and utility of the building or rented land, the landlord can seek his eviction. There is, thus, a clear distinction between Clause (ii) and Clause (iii) of Section 13(2) of the Act. in that while in the former the act complained of attracts eviction when it is committed without the written consent of the landlord, no such stipulation is contained in the latter.

Now as noticed above, the question of acquiescence would not arise when the statute specifically provides that the tenant shall be liable to eviction if without the written consent of the landlord, he uses the premises for purpose other than that for which it was leased Ved Park ash''s case (supra) is therefore, of no help to the Petitioners. Consequently, I hold that the finding of the learned Appellate Authority on ground (iii) is unexceptionable and is, therefore, affirmed

The up-short of the above dicussion is that this petition fails and is, therefore, dismissed. The order of the learned Appellate Authority is affirmed. The Petitioners are, however, allowed three months'' time to vacate the shop in dispute on the condition that they deposit the entire amount of arrears of rent along with future rent for three months within one month from today in the Court of the Rent Controller for payment to the Respondent. On their failure to do so, the Respondent shall be entitled to take out execution of the order of ejectment forthwith and recover possession of the demised premises. I, however, leave the parties to bear their own costs.