S. Kulwant Singh vs Shri Keshav Chander Jain

K. Kannan, J.—The civil revision is at the instance of the tenant, who has suffered a reversal of finding before the Appellate Authority. The latter found that the tenant had caused an unauthorized change of user of the property. Admittedly, the lease was for running a business as General Merchant at a rent of Rs. 75/- per month. The admitted case again was that at the time when the tenant had taken the premises on rent, he was doing retail business in demised property at Shop No. 12, Jain Market and he had taken yet another shop from the very same landlord in respect of Shop No. 22 where he was said to be a godown. He had come by possession of yet another building subsequent to the lease in Shop No. 5573, Saudagar Bazar and it is also the admitted contention initially by the tenant that he was running his retail business in Shop No. 5573 after he acquired possession of the said building.

While the landlord was contending that the acquisition of a new property in Shop No. 5573 led to a conversion of this property as a godown and that he was not doing any retail business and that it remained closed for most of the day, the tenant wanted to contend that he was doing wholesale business running an agency and also the retail business in the demised property itself. At the time of evidence, when the petitioner-landlord placed the evidence of PW-2 to say that the shop remained closed, the tenant refuted the evidence by giving evidence that he was doing retail business, wholesale business as well as using it as an agency. Elsewhere towards the end of the cross-examination, he abandoned his earlier version and threw a towel in caution when he contended that he was not doing any retail business in Shop No. 5573, Saudagar Bazar and that he was doing the retail business only from Shop No. 12. This, the Appellate Court found, was an instance of the witness not speaking the truth. The Court also made an issue of the fact that if the petitioner had been actually running a retail business, wholesale business and also using the property as an agency from the demised premise, there ought to have been documents to evidence the conduct of business from the demised premise. Admittedly, the documents had not been filed and drew an adverse inference from the fact that if he had been doing wholesale business or retail business from the demised premise, it was the best proof for vindicating his stand but the tenant did not have the evidence in that regard.

Learned counsel appearing on behalf of the tenant would contend that there was no reference to the fact that in the rent note that he cannot do any other business or there was any direction against using the property for wholesale business or for retail business. The law relating to change in user is well settled. It is not necessarily the mere change of business that will constitute an actionable change of user. In decision of the Supreme Court in Hari Rao Vs. N. Govindachari and Others, 3, the Supreme Court was actually considering the case of a tenant taking the shop for leather goods and shoes and later using the property for trade in business of garments. The Court found that this kind of change in user itself could not be considered to be a change of user. The Court also stated that it would be always open to use the premises for expanding his trade or even for taking up other lines of trade as befits a prudent trader. The question is not that the tenant could not have used this premise as a wholesale merchant or an agency. If it has come in evidence that the tenant had acquired yet another building subsequently where he was doing the retail business, the continuance of the property for retail business would require to be examined in the context of what the landlord was saying namely that the shop had remained closed and the property was being put to use as a godown. A godown invariably presents a situation of a muted activity where She shops remains closed all the time and it is opened only for removing or stocking goods at appropriate times for retail trading subsequently. It is in this context that a Full Bench of this Court in Des Raj Vs. Sham Lal, made a reference to a property being used as a godown as resulting in actionable ground for change of user. The Full Bench was holding that the property which was used as a shop could be constantly used by the lessee, which, by implication, ensured its proper upkeep likely timely repair, timely whitewashing etc., but when the building was used as a go-down, which was merely used for dumping goods therein, such an upkeep may neither be possible nor by implication envisaged as such. The Full Bench reasoned that a go-down remained mostly closed while a shop remained mostly open. It is the manner of user of the property that obtains relevance and it gives the landlord a ground for eviction. It is only in this context that in subsequent decision in Smt. Naurati Devi and Others Vs. Hans Raj and Others, the Court held that existence of Kothri does not imply that premises could be used as godown when it was let out as a shop. The Court also relied on the Full Bench judgment referred to above.

In this case, the Appellate Authority has considered the issue of fact, while reversing the judgment to hold that the tenant was not prepared to give the best evidence possible to show that notwithstanding a shift of retail business in Shop No. 5573, Saudagar Bazar, he had continuously used the demised premise for such retail business. The Court also found the non-production of documents for rendering business at Shop No. 12 as relevant and it also reasoned that the tenant was not speaking truth when he went to the extreme contending that Shop No. 5573, Saudagar Bazar was not at all used for retail business. With the factual rendering being supported sufficiently by reasoning and evidence relied on by the landlord, I would find no reason to interfere with the same. The revision petition is dismissed.