Gurdial Batra vs Raj Kumar Jain

D.V. Sehgal, J.—This revision petition is directed against the judgment dated 10 9.1979 passed by the learned Appellate Authority, Jalandhar, u/s 15 (5) of the East Punjab Urban Rent Restriction Act, 1949 (for short ''the Act'') allowing an appeal filed by the landlord Respondent and direct ejectment of the tenant-Petitioner from the shop in dispute.

The Respondent filed an ejectment application u/s 13 of the Act stating that he is the landlord of the shop in dispute and that the Petitioner is a tenant under him at a monthly rent of Rs. 16. A rent note dated 16.6.1964 Ex. A. 1 was duly executed by the Petitioner who had taken the shop on rent for carrying on the business of repairs of cycles and rickshaws. The ejectment of the Petitioner was sought inter alia on the ground that the Petitioner had changed the user of the shop without the consent of the Respondent by closing the business of cycle/rickshaw repairs and starting the business of television sets. He had also started the business of a property dealer in the demised shop. The application was opposed by the Petitioner. He admitted that the shop was given to him on rent by the Respondent for the rickshaw/cycle repair business but he stated that he was still carrying on the said business. As this business was not a paying one, he had started the business of television sets but that was eventually closed after six/seven months. It was therefore, maintained that there was no change in the user of the demised shop.

On the pleadings of the parties, the learned Rent Controller framed inter-alia the following issue:

Whether the Respondent is using the shop in dispute for a purpose other than that it was let out?

The learned Rent Controlled reached at the finding that the business in T. v. carried on by the Petitioner in the shop in dispute was a minor business as compared to cycle/rickshaw repairs and, therefore, did not amount to change of user of the shop. The application for ejectment of the Respondent was therefore dismissed vide judgment dated 10.9.1979. The Respondent being aggrieved against the same filed the appeal before the learned Appellate Authority which was allowed & the order of ejectment was passed against the Petitioner through the judgment under revision.

I have beard the learned Counsel for the parties. In fact, there is not much dispute on facts. The Respondent in his reply to the ejectment application stated that he was still doing the cycle/rickshaw repair business in the shop in dispute. This business was dull & he could not make both ends meet and as such he started the T.V. business along with the cycle/rickshaw repair business In his statement before the learned Rent Controller the Petitioner stated that he started the business of T.V. side by side the original business of cycle repair etc. The T.V. business was closed by him after doing the same for six/sevea months in the demised premises In cross-examination, he stated that he did not recollect if he had joined Ashok Kumar, Sarwan Kumar and Satnam Rani as partners in his T.V. business. He admitted that the licence for running the T.V. business as also the licence from the sales-tax department for the same were in his name. He stated that he did not remember if a partnership deed was executed with the aforesaid partners not did he remember that the partnership was only for T.V. business. He admitted that he had taken the shop on rent for doing the business of cycle/rickshaw repairs only. Shri M.L. Batra Advocate R. W. 2 stated that he was appointed a Local Commissioner to visit the property in dispute and to report about the nature of the work being carried on in the demised premises. He visited the shop and made his report Ex. R. 19. It has been stated therein that besides some cycle tyres, saddles, old cycles for repairs he saw one T. V. set lying in the show-case inside the shop. This report has been discarded by the learned Appellate authority on the ground that when the Local Commissioner visited the shop the tenant was already participating in the proceedings of the ejectment application & was thus aware of the impending visit of the Local Commissioner to the demised shop It is further to be seen that the tenant in his own statement as R.W. 1 has deposed that the T. V. business was closed after six/seven months. Therefore, the mere fact that only one T. V. set was lying in the shop would not detract from the admission of the Petitioner that in addition to the original user of the shop for cycle/rickshaw repairs he had started using the same for selling T.V. sets. Therefore, in my view, the report of the Local Commissioner Ex. R. 19 has been rightly discarded by the learned Appellate Authority.

However, on the basis of the admitted facts, the learned Counsel for the Petitioner contended that the business of sale of T. V. sets was started in the demised shop when the original user of repair of cycles rickshaws was also continuing. It did not amount to change of user of the demised premises within the meaning of Section 13 (2) (ii) (b) of the Act. In support of this submission, he placed reliance on Ram Lal and Ors. v. Parshotam Lal 1977 (2) R.L.R. 686, and Gopal Chand v. M/s Labhu Ram & Sons 1977 (2) R.L.R. 713. In Ram Lal''s case it was held that when the shop was taken for ''Karobar'' i.e. for commercial activity, and the tenant was carrying on the ''Karyana'' business in one portion or the shop and also started business of utensils in another portion, the tenant had not converted user of the shop from commercial business. In Gopal Chand''s case, the premises were let out for installation of power looms The tenant, however, later on also installed some hand looms. It was held that it did not amount to change of user of premises. In my view, none of these two authorities is applicable to the facts of the present case. In Ram Lal''s case the shop had been let out for ''Karobar'' i.e. commercial activity. No specific commercial activity for which it had been let out was mentioned in rent. In the present case, however, it is clearly stipulated in the rent note that the shop had been taken on rent by the Petitioner for carrying on the business of cycle/rickshaw repairs. In Gopal Chand''s case, installation of some hand looms in addition to the power looms could not be said to be change of user of the premises because the installation of hand looms was ancillary of the operation of the power looms.

In fact, the entire case law on the point has been lucidly discussed by a Full Bench of this Court in Sikander Lal v. Amrit Lal (1984) 86 P.L.R. 1 (F.B.), & it has been held that where the subsequent use of the premises is merely ancillary to the specific original purpose then it would not amount to a change of user within the meaning of the statute. If by custom or by convention or on the finding of the Court it can be held that the added use of the premises is ancillary to the main original purpose than in the eyes of law it would be deemed to have been within the terms of the original lease. The corollary to the main test of being a part of the original purpose would thus be that if it is ancillary thereto it would not come within the mischief of the statute. It was further held that on principle and on binding precedent it emerges that the specified original purpose cannot be extended by adding to it any & every allied purpose thereto, and the same must be confind within the limitation of being either a part and parcel of, or ancillary to, the original purpose-

Keeping in view the above principles of law laid down by the Full Bench in Sikander Lal''s case (supra), I unhesitatingly hold that the business of sale of T.V. sets is neither an allied business nor an ancillary one to that of repairs of cycles and rickshaws. In the facts of the given case, therefore, change of user of the shop without the written consent of the landlord after the commencement of the Act has been clearly established.

In view of the above discussion, I find no ground to interfere with the order of ejectment passed by the learned Appellate Authority vide its judgment under revision. The revision petition is, therefore, dismissed with costs. The Petitioner is, however, allowed three months time to vacate the shop in dispute on the condition that he deposits the entire amount of arrears of rent along with future rent for three months within one month from today in the Court of the learned Rent Controller and on his failure to do so the landlord shall be entitled to take out execution of the ejectment order and recover possession of the premises in dispute forthwith.