Dharambir vs Mansa Ram

R.L. Anand, J.—This is a landlord''s revision and has been directed against the judgment dated 17.1.1983 passed by the Appellate Authority, Narnaul who dismissed the appeal of Dharambir landlord by confirming the order of the Rent Controller.

The brief facts of the case are that Dharambir filed an ejectment petition against Mansa Ram seeking ejectment from the property situated within the Municipal limits of Rewari described in the head note of the petition and it was in possession of the respondent on monthly rent of Rs. 7/-. Ram Chander was the previous landlord and the petitioner purchased the same vide registered sale deed Ex.AW. 1/1 dated 28.1.1967 for Rs. 3,000/- and so, the petitioner became the landlord. The ejectment of the respondent was sought on the ground of nonpayment of rent and change of user. It was pleaded that the premises was given for the purpose of shop and the respondent was using it as a godown. Moreover, the respondent has ceased to occupy the property for a continuous period of four months and he has materially impaired the value and utility of the property.

Notice of the petition was given to the respondent who denied the allegations. A preliminary objection was taken that the Ram Chander previous landlord filed an ejectment petition against him in the year 1952 on the ground of change of user by stating that the shop in question was let out for the purpose of running a shop but godown has been installed in it. The said petition was dismissed as withdrawn and in these circumstances, the second petition by the successor of the landlord is not maintainable. On merits, the stand of the respondent was that he has paid arrears of rent alongwith interest and costs and the ground of non-payment of rent was given up. On merits, it was stated by the tenant that the tenanted premises were not used as shop. Moreover, it was given for the purpose of running a shop but it was let out for the purpose of godown and the respondent is using the premises as godown right from the inception of tenancy and in these circumstances, he has not changed the user of the property. Further, it was contended by the respondent that he had opened the suit property several times and he has not impaired the value or utility of the property.

For the purpose of disposal of the case, the learned Rent Controller framed the following issues:-

Whether the respondent is liable to ejectment on the grounds alleged in sub para No. b, c, d of para No. 5 of the application? OPA.

Whether the present application is barred by principal of resjudicata? OPR.

Whether the petitioner is estopped from filing the present application? OPR.

Relief.

Parties led oral and documentary evidence in support of their case and the Rent Controller dismissed the application of the landlord. Aggrieved by the order of the Rent Controller, landlord filed first appeal before the Appellate Authority Narnaul who vide order dated 17.1.1983 dismissed the appeal for the reasons given in para No. 7(i) to (vi) of the judgment as under:-

"7(i) It is not disputed during arguments that the respondent has been coming as a tenant in the premises in dispute since about 1947 and that previously Ram Chander was the landlord and he sold it to the petitioner on 28.1.1967. Now, this tenant had filed an application on 5.11.1952 for fair rent vide Ex.RW7/5. Its reply by the then landlord is Ex.RW-6/1. The parties gave statement on 16.11.1953 Ex.RW-7/6 and the then Rent Controller passed orders on Ex.RW-7/8 and the fair rent was fixed at Rs. 7/-. Now, from the above application of the tenant, it has been argued by learned counsel for the petitioner that this tenant had admitted that he had taken the shop on rent and that he was using it as a godown. So, it is argued that there is a change of user which was without consent of the landlord and so, the respondent should be ejected from the suit property (It is not disputed that if there is change of user without written consent of the landlord then the tenant is liable to ejectment). The above documents are not much relevant in view of discussion which now follows:- (ii) Ex.RW-6/1 is the petition for ejectment filed by the then landlord on 25.11.1952 against the respondent in which he had alleged that the respondent had taken the shop on rent and he was using it as a godown. The reply in that case, is Ex.RW-7/1 in which the tenant had interalia replied that he has been using the shop in question as a godown from the very beginning. The parties gave statements Ex.RW-7/2, Ex.RW-7/3 in that case and that petition for ejectment was dismissed as withdrawn on 16.1.1953 vide order Ex.RW-7/4. So far as the application for fair rent by the tenant in which he admitted that he had taken the shop on rent and was using it as a godown is concerned, the same is not much relevant in views of the subsequent ejectment application mentioned above filed by the then landlord. The landlord had claimed ejectment of the respondent on the ground of change of user alleging that the shop was being converted into godown and as already stated the tenant had pleaded that he was using the premises in question as a godown from the very begining and then this petition for ejectment was withdrawn and was dismissed on 16.1.1953 and that on that very day the fair rent was fixed on the application of the tenant as already mentioned above. So, from the ejectment application filed by the landlord in 1952 and its decision on it while withdrawing the same by the landlord, it shows that the landlord had consented in writing to the premises being used as a godown and that is why he withdrew this petition for ejectment. So, by virtue of the decision in ejectment petition, it should be presumed that there was written consent of the landlord for change of user and now the petitioner who has stepped into the shoes of the then landlord, cannot come to the Court on the ground of change of user and he is estopped from filing the present petition.

(iii) Shri G.C. Sharma, Advocate learned counsel for the appellant-petitioner has drawn my attention to 1977 R.C.R. 374 (Thakar Dass Batra and Anr. v. Mithan Lal). In that case building was taken for residence and the tenant was using it for non-residential purpose for 20 years with the knowledge of the landlord and it was held that written consent of landlord was necessary to the change of user.

(iv) Learned counsel for the petitioner has also relied upon 1971 R.C.R. 258 (Shiv Narain v. Smt. Khushal Devi). In that case premises were given for residential purpose by the landlady in 1952 and the tenant started using the same for commercial purpose without protest from the landlady and landlady had filed an application for ejectment on the ground of change of user. It was held that conduct of landlady was not sufficient for consent to change of user and it was held that the consent should be in writing.

(v) There is no dispute with the above two authorities and principles laid down therein, but the above two authorities are distinguishable from the facts of the present case in as much as in the present case there was already litigation between the then landlord and the present tenant for ejectment of the tenant on this very ground of change of user and the landlord had withdrawn that petition meaning thereby, as already mentioned and that he had given his written consent for the change of user. This is not the position in the above two authorities. So, the above two authorities are not applicable to the fact of the present case. For the last more than 30 years, the respondent is using the premises as a godown and as already mentioned above by virtue of the earlier petition filed by the then landlord in 1952 for ejectment of the respondent on this very ground of change of user which petition was withdrawn by him, it should be held that there was a consent in writing for the change of user and so, I am of the view that this petition for ejectment of the respondent on the ground of change of user does not lie and the petitioner is estopped from filing the present petition.

(vi) No other ground of ejectment of the respondent was pressed. Under these circumstances, finding of learned lower Court on both the issues is confirmed against the petitioner-appellant."

Aggrieved by the order of the Appellate Authority, the present revision by the landlord.

I have heard Ms. Hemani Sarin, Advocate on behalf of the petitioner and Shri Hemant Kumar Gupta, Advocate on behalf of the respondent and with their assistance have gone through the record of this case.

Learned counsel for the petitioner submitted that it is proved on the record that the property in dispute was a shop right from the very beginning and it is admitted case of the respondent that he has been using the premises as godown and in these circumstances, the change of user can be easily and readily inferred. In support of her contention, learned counsel for the petitioner referred to the sale deed Ex.AW. 1/1 which was executed by the previous landlord Ram Chander in favour of the present landlord and there is clear mention that the property in dispute was a shop. The learned counsel for the petitioner then referred to the documentary evidence Ex.RW-7/5, a certified copy of the petition moved by Shri Mansa Ram respondent u/s 4 of the Rent Restriction Act against Shri Ram Chander in which in para 1, he has stated that he took one shop on rent and that he is using the shop as a godown. The counsel then referred to RW-6/1, a certified copy of the petition u/s 13 of the Rent Restriction Act where too the premises in question have been described as a shop. On the contrary, learned counsel appearing on behalf of the respondent submits that the premises in question were taken on rent for the purpose of running godown and right from the inception the property is being used as a godown. In these circumstances, the respondent has not changed the user of the property. Also it was submitted by the learned counsel for the respondent that the previous landlord filed an ejectment petition u/s 13 of the Rent Restriction Act in which he had taken similar plea that the shop in question has been converted into godown. The tenant also filed an petition about fair rent. A compromise was effected as a result of which rent was enhanced from Rs. 4/- to Rs. 7/-, with the enhancement of the rent, the previous landlord withdrew ejectment petition. Learned counsel for the respondent submitted that in these circumstances, the principles of Order 23 Rule 1 C.P.C. would apply and the present petition u/s 13 of the Rent Restriction Act moved by the successor of the previous landlord is not legally maintainable.

I have considered the rival contentions of the learned counsel for the parties and am of the opinion that the order passed by the Appellate Authority is just and proper and no interference is called for in the present revision.

There is no written tenancy in this case from which it can be determined either for the advantage of the tenant or the landlord as to for which purpose the premises in question were let out to the tenant. In these circumstances, we will have to depend upon oral evidence. As I have stated above that the property in question was let out to the tenant by the previous landlord Shri Ram Chander. He was the best person to tell us as to for what purpose the premises in question were let out to the tenant. He has not been examined by the petitioner for the reasons best known to him. The second best evidence could be the neighbourers of the premises in question to show that earlier the premises in question was being used as shop by the respondent and subsequently, he has changed the user of the property by converting shop into godown. In this regard also, there is no satisfactory evidence led by the petitioner though he has tried to examine oral witnesses. As against this, it is established through documentary evidence that the promises in question were used as godown right from the very beginning. The counsel for the petitioner relied upon RW7/5. This is certified copy of the ejectment petition. No doubt in para 1 of the petition landlord made an allegation that the premises in question is in the shape of two mouths shop and that the tenant is using the shop in the shape of godown but it was denied by the tenant, as is clear from his reply Ex.PW.6/1. He has categorically stated that he has never changed the user of the property from the shop to the godown. It was the stand of the tenant that the premises in question was never used as shop, and that he took the premises in question in order to store the goods.

It was very easy for the landlord to establish that the premises in question were let out for the purpose of running shop and that the tenant changed the user of the property. He could prove cash memos or produce some body from the neighbourhood to establish that the tenant had been using the premises in question as godown. He could examine some postman etc. A ready inference cannot be drawn in favour of the landlord that the description of the property in question is shop or it looks like shop and therefore, its user as a godown will amount to change of user. Learned counsel for the petitioner relies upon Dharam Raj and Another Vs. Roshan Lal and Another, , and submits that when the premises in question are let out to a tenant as a shop and the tenant uses the same as godown or workshop, it will amount to change of user. The citation is not helpful to the petitioner. In the cited case there was a written tenancy and it was proved on the record that the premises were let out to the tenant as a shop and subsequently he changed the user of the property by converting it to the godown or workshop. In the present case, the landlord has not produced the best evidence in this case. On the contrary, there is satisfactory evidence that from the very beginning the shop in question was being treated as godown. Even surroundings of the shop are also being treated as godown. The learned Appellate Authority has taken a correct view. Learned counsel for the petitioner then relied upon Kuldip Singh Vs. Shiv Saran Dass Rakesh Kumar and Others, , The judgment is again not helpful to the petitioner for the reasons given above when I distinguished the citation Dharam Raj and Another Vs. Roshan Lal and Another, . Learned counsel for the petitioner then relied upon (1980)82 P.L.R. 647 (F.B.) Des Raj v. Sham Lal. In this judgment it was held if the premises were let out as a shop and the tenant used as a godown, it will amount to change of user. Here in this case, it is not proved on record that the premises were let out for the purpose of shop and subsequently it was being used as a godown. The link is missing. On the contrary, learned counsel for the respondent relies upon (1988)93 P.L.R. 269 and submits that the present petition is impliedly barred by invoking the provisions of Order 23 Rule 1 C.P.C. In support of his contention, learned counsel for the respondent submits that the previous landlord filed an ejectment application against the tenant on these very grounds. The ejectment petition was dismissed as withdrawn when a compromise was effected between the parties and the tenant enhanced the rent from Rs. 4/- to Rs. 7/- per month. I find merit in this contention. It is true and strict provisions of C.P.C. are not applicable to the proceedings under the Rent Restriction Act but broad principles of C.P.C. would be applicable and this has become necessary in order to give finality to the orders of the Rent Controller. Order 23 Rule 1 lays down that at any time after the institution of a suit, the plaintiff may as against all or any of the defendants, abandon his suit or abandon a part of his claim and according to Rule 4 of the said Order when the plaintiff abandons any suit or part of claim under Sub-Rule (1) or withdraws from a suit or part of a claim without the permission referred to in Sub-Rule (3), such a plaintiff stands precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. Faced with this difficulty, learned counsel for the petitioner submitted that before the Appellate Authority, the tenant has given up issue 2 which was to the effect whether the main petition was barred by the principle of resjudicata and in these circumstances, it is not open to the respondent to take shelter of Order 23 Rule 1 C.P.C. I do not subscribe to the arguments raised by the learned counsel for the petitioner. Of course, when the petition u/s 13 of the previous landlord was rejected, there was no finding on merits but there was definitely an estoppel which was operating upon against the landlord when with the increase of the rent, he withdrew his petition u/s 13 of the Act and did not reserve his right to file fresh one on the same cause of action. In Mehtab Singh v. Tilak Raj Arora (1988)93 P.L.R. 269 it was held as under:-

"Even though the CPC is not applicable to the proceedings before the Rent Controller, but the general principles contained in the Code, including the one noticed above which are based on justice, equity and good conscience would govern those proceedings.

Held further, that a second petition for the ejectment of the tenant on a ground on which an earlier petition was got dismissed as withdrawn without liberty to file a fresh petition would be barfed and not maintainable."

This authority fully supports the case of the respondent.

In view of the above, I do not see any merit in this revision and dismiss the same with no order as to costs.