Raj Kumari vs Dr. Krishna and Another

V.K. Jhanji, J.—This revision petition is directed against the orders of the Authorities below by which the ejectment application of the respondents-landlady was allowed and the petitioner-tenant was ordered to be ejected on the ground of change of user from Kashida Kari, i. e. embroidery work to sale of electric goods and repair of refrigerators. Respondents filed the application for eviction of the petitioner on several grounds. Out of the said grounds, one ground taken against the petitioner-tenant was that she took the demised premises for doing the Kashida Kari work, i. e. embroidery work, and that she has changed the user by utilising the portion of the shop for selling electrical goods and repair of refrigerators.

Before the learned Rent Controller, the defence of the petitioner-tenant was that she increased the rent to Rs. 60/- p. m. inclusive of house tax, and on the oral permission of the landlady, started utilising the portion of the shop for selling electrical goods. Both the Authorities below have concurrently found that the shop in dispute was let out vide rent noted dated 15th of July, 1979, and under the said rent note, the tenant was allowed only to do the business of embroidery work.

Shri H. L. Sarin, Sr Advocate, learned counsel for the petitioner argued that the shop in dispute was let out for carrying on the business, and merely by using the portion of the shop for another business will not amount to change of user. He further contended that there is no evidence on record to show that doing the business of selling electrical goods and repairing, of refrigerators, in any way, has impaired the utility or damaged the shop. In support of his arguments, he has relied upon judgment of Supreme Court in Mohan Lal, v. Jai Bhagwan (1988) 93 P.L.R. 670 (S.C.). Rattan Lal v. Asha Rani 1988 H.R.R. 625 and Dhanpat Rai v. Lajpat Rai (deceased) represented by his L.R''s. Shanti Devi (1989) 95 P.L.R. 387.

On the other hand, Sh. (Dr.) Balram Gupta, Advocate, learned counsel for the respondents submitted on the basis of the finding of the appellate authority that part of the shop is being used not merely for selling the electrical goods but also for carrying on the repair work of other electrical appliances, which work appears to be an industrial activity. In support of his arguments he has relied upon the judgment of this Court reported as Chander Kumar Anand v. Daropadi Devi (1988) 94 P.L.R. 660.

After hearing learned counsel for the parties, I am of the considered view that this revision petition deserves to succeed.

In Mohan Lal''s case (supra), the premises were let out for the purpose of running a liquor vend, but later on, the tenant started the business of general merchandise. An order of ejectment was passed by the Authorities below and when the matter came up before the Supreme Court, the appeal of the tenant was allowed and the eviction order was set aside. In the said judgment, the Supreme Court observed as follows:-

"In the expanding concept of business now-a-days and the growing concept of departmental stores, we are of the opinion that there was no change of user in the facts of this case which would attract the mischief of the provisions of Section 13 (2)(ii)(b) of the Act. The building was rented for the purpose of carrying on a business, using it for another business, it will not in any way impair the utility or damage the building and the business can be conveniently carried on in the said premises. There was no nuisance created."

In Rattan Lal''s case (supra), where the tenant instead of using the premises for running a grocery shop for which it was let out to him, started running a book-shop, the Supreme Court found that there was no change of user.

In Dhanpat Rai''s case (supra) J. V. Gupta, J. (as his lordship then was) relying upon the judgment of Supreme Court in Mohan Lal''s case (supra), allowed the tenant''s revision petition, where it was found that the tenant instead of using the premises for running a Halwai Shop for which it was let out, started the business of Kiryana.

In view of the above authoritative pronuncement, of the Supreme Court, the order of ejectment cannot be sustained merely because a portion of the premises is now being used by the tenant for the purpose of selling electrical goods as well as doing the repair work of refrigerators. The contention of learned counsel for the respondents that apart from doing the work of selling electrical goods and repair of refrigerators, the work of motor rewinding and gas refilling is being carried out in the premises, and this amounts to an industrial activity, is of no substance. Learned counsel for the respondents has not been able to point out anything from the record that by doing such a work, the shop in any way has been impaired or damaged.

A. W. 1. Joginder Kumar, special attorney of landlady, in his statement has nowhere stated that by doing such a work any damage has been caused to the building. He infact stated that the work of refrigerators and sale of electrical goods is being done in the shop. A. W. 2-Pushkar Kumar who took the photographs of the demised premises, stated in his cross-examination that embroidery work is also being done in the shop. The tenant while appearing as R. W. 1 has stated that apart from embroidery work, she was keeping electrical goods for sale for the last nine years. This was also stated by R. W. 2-Kasturi Lal.

Chander Kumar Anand''s case (supra), has no application to the facts of the present ease, because in that case, initially the premises were let out for running a tea stall and thereafter, the tenant started the work of manufacturing pens. However, this is not the position in the present case where apart from doing the embroidery work, the tenant, in a portion of the shop has started the work of selling electrical goods and repairing of refrigerators. Therefore, this activity cannot in any way, said to be an industrial activity.

Consequently, the revision petition is allowed. The orders of the Authorities below are set aside, and the ejectment petition of the respondents is dismissed. However, there shall be no order as to costs.