Kartar Singh vs Ajaib Singh

D.V. Sehgal, J.—This revision petition by the landlord-Petitioner is directed against the judgment dated 25.5.1979 passed by the learned Appellate Authority, Faridkot, u/s 15(3) of the East Punjab Urban Rent Restriction Act, 1949 (for short ''the Act'').

An order of ejectment passed by the learned Rent Controller vide order dated 19.1.1978 in favour of the Petitioner and against the tenant-Respondent was reversed by the learned Appellate Authority.

The Respondent is a (tenant under the Petitioner in the shop in dispute at a monthly rent of Rs. 15/-. His ejectment was sought by the Petitioner by filing an application u/s 13 of the Act on 18.12.1973 on two grounds, namely, that the Respondent had neither paid nor tendered rent for the period 1.9.1973 to 30.11.1973 and that the shop in dispute was in a dilapidated condition and was thus unfit and unsafe for human habitation and required reconstructions. However on 17.2.1976 when the Respondent was being examined as his own witness, he admitted in cross-examination that his father Kundan Singh had taken the shop on rent to sell meat and to keep goats. Later, his brother Balwant Singh was let out the shop for the same purpose and then the Respondent himself become a tenant in the shop for that very purpose He, however, stated that he had started the business of cycle repairs in the shop for the last 4/5 months and did not sell meat because the Municipal Committee had prohibited the sale of meat by him and that is why he had started the business of cycle repairs. This provided an opportunity to the Petitioner to take an additional ground for the ejectment of the Respondent. With the permission* of the learned Rent Controller he amended his application and added the third ground of ejectment, namely, that the Respondent had used the shop for a purpose other than that for which it was leased out to him.

The learned Rent Controller negotiated the former two grounds for ejectment as taken in the application by the Petitioner but he ordered eviction of the Respondent on the third ground, i e. the added ground, and held that while the shop was let out to the Respondent for the purpose of selling meat and keeping goats, he had used the same for the business of cycle repairs. As already mentioned above, this finding of the learned Rent Controller was reversed by the learned Appellate Authority which held that the business of cycle repairs started by the Respondent in the shop did not amount to change of its user and, therefore, his eviction on the ground contained in Clause (b) of Section 13(2) (ii) of the Act was not attracted. This is how the Petitioner has approached this Court through the present revision petition.

I have heard the learned Counsel for the parties and have also gone through the record of the learned Rent Controller including the pleadings of the parties and the evidence brought on the record. I find no ground to interfere with the judgment passed by the learned Appellate Authority. It was not disputed before me that the Respondent had executed a rent note in favour of the Petitioner when the shop was let out to him. However, this rent note was not produced in Court by the Petitioner He rather withheld it An adverse inference as such is to be drawn against him in that had he produced the rent note on the record it would have shown that no specific purpose for which the shop was let out was mentioned therein. The Petitioner sought to rely on the admission of the Respondent to the effect that he had-taken the shop on rent for the business of selling meat and keeping goats. I, however, cannot lose sight of the fact that when the so-called admission was made there was no ground of change of user of the premises set out in the application by the Petitioner.

The learned Counsel for the Petitioner sought to rely on Madan Lal v. Madan Lal (1985) 87 P. L. R. 400 and Gurdev Singh v. Om Parkash 1977 (2) RL. R. 142, to canvass support for his submission that when initially the shop was taken for one purpose the change in business by the Respondent would attract his eviction. Madan Lal''s case (supra) is clearly distinguishable. In that case the rent note was duly produced on the record which made it evident that the premises in dispute was a residential house which had been taken by the tenant on rent for his residence. Later, however, he shifted his residence to another house and started using the house in dispute for the living of his servants and other employees. This was termed as a change of user for the reason that by not using the premises for his own residence and leaving it for the use of his servants and the employees the tenant had neglected the premises and it was a clear case of change of user. As already pointed out above, in the present case the note has not been produced and it is to be presumed that the purpose for which the shop was let out is not mentioned therein as regards Gurdev Singh''s case (supra), all that be mentioned is that it does not lay down good law in view of the Full Bench judgment in Des Raj v. Sham Lal (1980) 82 P. L. R, 647 (F. B.). The dictum of the Full Bench is that a shop can be used for carrying on any business if the lease deed is silent about the specific purpose for which it is let out, but if in the lease deed besides identifying the building as a shop it is further mentioned that the same is given for the purpose of running a cloth merchant''s businese then such an expression would limit the use of the shop for the purpose of carrying on wholesale or retail sale of the cloth and the lessee without attracting the provisions of Section 13(2) (ii) (b) of the Act would not be able to use the shop for a purpose other than the one mentioned in the lease deed. The same view has been taken in Ram Dayal v. Ram Charan Dass 1984 (1) R.C.R. 282.

As a consequence this revision petition is dismissed. The parties are, however, left to bear their own costs.