Ram Kumar (Died) through his L.Rs. and Others vs Bajrang Dass and Others

V.S. Aggarwal, J.—The present petition has been filed by Ram Kumar (since died and represented by his legal representatives) and others, hereinafter described as "the petitioners" directed against the judgment of the learned Appellate Authority, Bhiwani, dated 15.3.1982. The Appellate Authority had set aside the order passed by the Rent Controller, Bhiwani, and instead passed an order of eviction against the petitioners with respect to the suit premises giving the petitioners two months'' time to vacate the property.

The relevant facts are that Bajrang Dass respondent had field eviction petition against the petitioners with respect to the premises in dispute. The sole surviving ground which require consideration is that as per respondent, the suit premises has been let to the petitioners for running a commission agent business. The petitioners are using it for grinding wheat and spices. Due to working of the machine, the neighbours are disturbed.

The eviction petition was contested. The locus standi of the respondent to file the petition was denied. As regards the said ground of eviction, petitioners pleaded as under: -

"That para No. 9 of the application is wrong and incorrect. It is denied and not admitted. The respondents have been using the demised premises for it was taken on rent. It was taken for the purposes of food grain and Commission Agency business and this very business is being carried on till now. The allegations of installing any chakki is wrong and baseless."

The learned Rent Controller framed the issues and with respect to the said controversy held that there is no change of use of the suit premises. The evidence of the respondent in this regard was not believed.

In appeal, the learned Appellate Authority held that the property had been let for running of the Commission Agency business while it was being used for grinding of wheat and spices and, thus, there is positive change of nature of the demised premises. Keeping in view the said finding, an order of eviction was passed against the petitioners.

Aggrieved by the said order, the present revision petition has been filed.

The ground of eviction pressed on behalf of the respondents finds place in Section 13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act, 1949 (for short "the Act") which reads as under:-

"13. Eviction of tenants: (1) xx xx xx

(2) A landlord who seeks to evict his tenant shall apply to the Controller in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied:-

(i) xx xx xx xx xx xx (ii) that the tenant has after the commencement of this Act without the written consent of the landlord-

(a) xx xx xx xx xx xx (b) used the building or rented land for a purpose other than that for which it was leased or

(iii) to (v) xx xx xx xx xx

In other words, if the building had been let for a specific purpose and it is used for a purpose other than for which it was let, the ground of eviction becomes available.

In the present case in hand, the petitioners in the written statement admitted that the property had been taken for Commission Agency business, but it had been denied that it is used for grinding of wheat and species. The learned Appellate Authority returned a finding of fact that the property in question is being used for grinding of wheat and spices. In this regard, strong reliance has been placed on the report of the Local Commissioner who had visited the said place and even appeared as a witness. The Local Commissioner reported that grinding machine for spices had been installed and at that time ''Dhinia'' was being grinded. He had even found that some ungrinded chilly and turmeric were lying in certain boxes. There were small drums lying which were used while grinding work was done. The evidence was appreciated. The finding is based on the material placed on the record. There is no ground to upset the same, it must, therefore, follow that the property though admittedly was earlier let for doing Commission Agency was presently being used for grinding and in that process another product is being produced.

Learned counsel for the petitioners urged that the property in dispute, in any case, must be taken to have been taken for commercial purpose. It is still being used for commercial purpose and, thus, the ground of eviction is not established. At the outset, it must be stated that it is not the plea of the petitioners, during the course of trial or pleadings, that the property in question had simply been let for commercial purpose or that the said purpose continues. Herein, it is a specific case that it is being used as was let or being used as a commission agent business.

Strong reliance was being placed on the decision of the Supreme Court in the case of Mohan Lal Vs. Jai Bhagwan, . Herein, a petition for eviction had been filed under the Haryana Urban (Control of Rent and Eviction) Act, 1973. The Rent Controller had held that there was a change of user of the property and an eviction order was passed. The suit property was let for a liquor vend business and it was being used for general merchandise shop. The Supreme Court held that there was no change of user because it was an expended concept of departmental store. The business was alive to the original purpose for which it was let. In paragraph 9 of the judgment, Supreme Court had concluded as under: -

"While respectful agreeing with the said observations of Lord Diplock, that the Parliament legislates to remedy and the judiciary interpret them, it has to be borne in mind that the meaning of the expression must be found in the felt" necessities of time. In the background of the purpose of rent legislation and inasmuch as in the instant case the change of the user would not cause any mischief or determinent or impairment of the shop in question and in one sense could be called an allied business in the expanding concept of departmental stores, in our opinion in this case there was no change of user which attracts the mischief of Section 13(2)(ii)(b) of the Act. The High Court, therefore, was in error."

Full Bench decision of this Court in the case of Sikander Lal v. Amrit Lal (1984)86 P.L.R. 1 (F.B.), was over ruled.

In the present case, the petitioners, indeed, cannot take the advantage of the ratio decidendi of this decision. It has to be seen in the facts and circumstances of each case as to whether the purpose for which the property is let or is alleged to be used is allied business or not. It is totally unconnected with the original purpose. The necessary finding would be that there is change of user of the property. In the present case, the business of grinding of spices etc. is totally different from the business of Commission Agent. The Commission Agent is basically an agent who sells the property on behalf of the principal and charges his commission and that cannot be said to in the case of grinding of spices etc. Grinding will be detrimental to the interest of the landlord as the premises could well be damaged. This important fact was ignored.

Reference in this connection can well be made to the decision of this Court in the case of Dharam Raj and Another Vs. Roshan Lal and Another, . Herein, the property was let as a shop but it was used as a godown. The decision of the Supreme Court in Mohan Lal''s case (supra) was considered. A reference was made to the larger Bench. It was held that when the property was used for a purpose totally different from which it was let, the ground of eviction would be available. In the said case it was held that the ground of eviction would be available.

More close to the facts of the present case is the decision of this Court in the case of Kasturi Lal Vs. Muni Lal and Others, . Herein the property in dispute was let for being used as a shop. It was being used for manufacturing soap. This Court held that the ground of eviction would be available as the property was being used for manufacturing purpose. The same view prevailed with this Court in the case of Sh. Ram Parshad (Died) Vs. Ved Parkash, .

The net result from the aforesaid is that in the present case the property is being used for a different purpose for which it was let. It cannot be taken to an expanded purpose for which originally the suit premises had been let. Therefore, there was a change of user. The order of eviction was rightly passed.

For these reasons, there is no ground to interfere in the findings of the learned Appellate Authority. The revision petition being without merit must fail and is according dismissed.

The petitioners are granted three months time to vacate the demised premises.