Hukam Chand vs Sohan Lal

M.S. Liberhan, J.—This Revision Petition arises out of an order of ejectment, dated October 11, 1982, passed by the Rent Contoller.

The respondent-landlord sought the ejectment of the tenant from the premises shown in Plan A-4, consisting of two rooms described as shops and another one room, also described as shop. The demised premises were tenanted to the tenant at the rate of Rs. 30/- per month for running a Biscuit Factory The grounds for ejectment put forth by the landlord are, that the demised premises were let out for Bakery but the tenant has started residing in the same, the tenant has removed the wall intervening the two rooms and converted into one room, he has damaged the floor and constructed a chhaija and thus, has impaired the value and utility of the building.

The tenant refuted the claim of the landlord'' and averred that the demised premises were not let out for any specific purpose and he was using it for residence-cum-business purposes from the inception of the tenancy. Further, peas of non maintainability of the ejectment petition in view of Section 11 of Haryana Urban (Control of Rent and Eviction) Act and it being barred by principles of res judicata the earlier petition having been rejected on the same grounds viz change of user, were put forth.

The Rent Controller came to the conclusion that the ejectment petition was not barred by principles of res judicata and since the tenant had changed the user, he was liable to be ejected from the premises in dispute. The lower appellate Court affirmed the finding of She change of user and came to the conclusion that the present petition was not barred either on account on the principles of res judicata or Order XX1H, Rule 1, Code of Civil Procedure, or Section 14 of the Act. Thus the order of ejectment was affirmed.

Th6 learned counsel for the petitioner in this Revision Petition argued that the present ejectment petition is not maintainable as the earlier ejectment application on the ground of. change of user was got dismissed by the landlord. It was contended that the building was not taken on lease for any specific purpose, rather it was leased out to the tenant for the purpose of residence as well as business which he was doing from the inception of the tenancy and is still continuing to do. There is no change of user and the ejectment order is liable to set aside.

The learned counsel has taken me through the pleadings and oral evidence adduced by the parties, particular Exhibits R. 7, R 10 and R 11 in order to support his confections Pe relied on Mehtab Singh v. Tilak Raj Arora, (1988-1)93 P. L. R. 269. A Division Bench of this Court in Mehtab Singh''s case (supra) observed. ''Therefore," 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 barred and not maintainable" There is no serious challenge to the proposition laid down in the said Division Bench judgment with which I respectfully agree.

The question which arises for consideration in the present case is, whether the withdrawal of the earlier ejectment petition without permission to file a fresh one having been obtained, debars the present ejectment petition. It would be expedient to collate the necessary facts at this stage. Exhibit R 4 is an application for ejectment filed by the landlord against the tenant, which was got dismissed as withdrawn. The specific averment put forth in tie said ejectment petition, on tie ground of change of user is that, "the property in dispute was let out to the respondent for running a Bakery and Biscuit Factory but is now being used for residence by the respondent and he is running a ration shop also."

The Rent Controller ordered on June 2, 1975, vide Annexure R. 7, "In accordance with the statement of the counsel for the landlord, the application is filed. Order pronounced."

The counsel for the respondent-landlord stated in Exhibit R-10, "It is stated that on demised premises Act No. II of 1973 is not applicable. Therefore, I take back the application for ejectment. Permission to file a civil suit on these facts be granted."

The learned counsel for the tenant opposed the permission to withdraw the application and stated in his statement Exhibit R. 11, "It is stated that the statement of the counsel for the landlord is not correct. He has no objection for the return of the ejectment application However, no permission to file a civil suit can be given.

With the help of the learned counsel for the parties, I have gone through the present application for ejectment in Para 4 (ii) of which, the claim of the landlord for ejectment is that the tenant has converted the user of the building from ion residential to residential one. The stops were let out to the respondent for Bakery and Biscuit Factory but the respondent has, without permission of the landlord, started residing in the same with his family The respondent has totally closed the business of the shop in dispute. Similar is the averment in Para 2 (e).

12 From a reading of the present, as well as the earlier application for ejectment, it is obvious that earlier the ejectment was sought on the facts contemplated that the shop in dispute is partially being used for business of Ration Depot and partially for residence though the demised premises were let out for Bakery and manufacture of Biscuits while in the present application the ground for ejectment is that the petitioner has totally stopped his business activities and converted the shop into a residence, i e. there is a complete change of user of the demised premises from non residential to residential. The facts given entirely a different cause of action than the cue, the petitioner put forth in the earlier application. There is no gainsaying that the complete change of user has been attributed to have been brought about with effect from December 1, 1978, while the earlier partial change of user was stated to be in the year 1973. It cannot be presumed that the present application is on the same cause of action or the tenant is being vexed twice over. The principle of law laid down in the judgment cited above and the arguments advanced shall not be attracted to the facts of the present case. The withdrawal of the application on a particular cause of action does not debar the landlord for all times to come from seeking the ejectment for a different cause of action arising to him at a later point of time. Complete stoppage of trading or the business activities being complete change of user is an independent cause of action than the partial stoppage of business activity or change of user.

In view of the observations made by me above, I affirm the finding of the Authorities below that the present petition for ejectment is not barred either on account of Order XXIII, Rule 1 of the Code or principles of resjudicata as the same matter was not decided on merits between the parties.

So far as the findings with respect to change of user are concerned, I find no error or impropriety worth noticing in the findings recorded by the Authorities below. Undisputedly, the demised premises have been described as shops. No non-residential building as usually understood in common parlance is described as shops Shops as commonly understood are the premises where usually the business trading etc. are carried on. The tenant has admittedly stated that the shops were taken on lease, though for not any specific purpose but he has been running the Bakery and has been residing as well. At the time of taking the premise on lease and round about that time and later also for some time, he was residing in Ashok Nasar Sene pat. Undisputedly, at a later point of time he left the business of Bakery and started doing the business of Ration Depot in the demised premises which is again a business activity It is again not disputed that the demised premises are constituted of three rooms only. There is no bathroom, kitchen etc. attached with it which are usually attached with residential buildings in a town like Sonepat, which is a District Headquarter. Undisputedly, at present the tenant is residing in the demised premises and he has got no other residential building to live.

In addition to the above facts, for the reasons recorded by the Rent Controller, I affirm the finding of the Rent Authorities below Chat the tenant has changed the user of the demised premises from non-residential to residential, which squarely satisfies the ground of ejectment. Accordingly, I find no force in the Revision Petition The same is dismissed, with no order as to costs.

The ejectment order shall not be executed in case the tenant riles an undertaking within two weeks that he shall vacate and hand over the vacant possession to the landlord on or before May 1 1991 and pays or deposit the arrears of rent, if any.