Shri Ram Parkash and Others vs Surinder Pal Singh

V.S. Aggarwal, J.—The present revision petition has been filed by Ram Parkash and others, hereinafter described as "the petitioners" directed against the judgment of the learned Appellate Authority, Amritsar, dated 8.9.1981. By virtue of the impugned judgment, the order of the learned Rent Controller, Amritsar, was set aside and instead an order of eviction was passed against the petitioners granting them two months time to vacate the demised premises.

The relevant facts are that the respondent had filed an eviction petition against the petitioners with respect to the property in dispute. It was asserted that the property in question had been let vide rent note dated 12.6.1965. The same had been let to Tek Chand, Predecessor-in-interest of the petitioners. The sole ground which survives for consideration in the present revision petition is that the property in question was let to be used for the sale of ice and vegetable but the petitioners have converted the user of the shop by converting it into a wood and charcoal stall.

The eviction petition had been contested. It was asserted that in the shop the business of sale of ice, vegetables, coal and fuel wood is carried on from the very beginning. The respondent-landlord had never objected. It was denied that the coal is broken in the premises or fuel wood and pierced therein. It does not impair the value and utility of the premises.

The learned Rent Controller framed the issues and held that if a small portion put to a different use, it does not tantamount to change of user. Sense of proportion in social assessment is of judicial essence. It was further concluded that sale of charcoal and fuel wood does not affect the utility and value of the suit premises. Accordingly, the petition for eviction had been dismissed.

The respondent preferred an appeal. The learned Appellate Authority held that the property in question was let specifically for the business of selling ice and vegetables. It was further held that the business of selling ice and vegetables had not been carried in the suit premises and that there is a change of user when sale is of charcoal and fuel wood. An order of eviction was accordingly passed.

Aggrieved by the same, present revision petition had been filed. Only petitioners counsel appeared and addressed the arguments. There was no appearance on behalf of the respondent. This court, thus, did not have the advantage of hearing respondent''s learned counsel. 7. There has been no controversy raised that the property in question had been let on the basis of rent note. Exhibit A-1 According to the same, the demised property was let specifically for the sale of ice and vegetables only.

On behalf of the petitioners, it was urged that the finding of the learned Appellate Authority that the petitioners had stopped the business of selling ice and vegetables is not correct. To this extent, the argument of the learned counsel for the petitioners must prevail. The findings of the learned Appellate Authority in this regard are erroneous and absurd.

It transpired in evidence that ice was being sold from the platform just outside the shop. It is common knowledge that in summer season to avoid dampness and flow of melting ice it is placed on the platform outside the shop and thereafter it is sold to the customers. By no stretch of imagination it could be termed that the business of selling ice had come to an end. In fact, evidence showed that the petitioners continued to be member of the Association pertaining to the sale of ice. Exhibit RW9/1 to 9/3 are the receipts which showed that the petitioners still pay necessary charges to the Association. If the petitioners had stopped the business of sale of ice, there was no occasion for them to continue to be member of such Association and make payment with respect to it. These factors clearly showed that the business of sale of ice is still continuing.

The learned Appellate Authority had referred to the fact that there are no bills or vouchers forth coming to show that the sale of ice was continuing. In fact, the said finding need not be accepted.'' For small business, such type of bills or vouchers are not mandatory.

It is true that there was a partnership for the sale of coal and wood. But it does not imply that the other business had been stopped. If for a new business a partnership is entered, but no logical conclusion it could be inferred that the earlier business pertaining to sale office and vegetables had come to an end. The said finding of the learned Appellate Authority, therefore, being not based on evidence necessarily has to be set aside. It flows that the business of sale of ice was continuing. Admittedly, the business of sale of coal and wood had been started.

Immediately a question arises that when earlier business is still being carried out as per terms of the lease and another business had been added, whether it would amount to change of user or not? Reliance in this regard is being placed on the decision of the Supreme Court in the case of Mohan Lal Vs. Jai Bhagwan, . In the cited case, the property had been let for a liquor vend. The business of general merchandise had been started. The Supreme Court held that this was the expanding concept of departmental store and would not amount to change of use. In paragraph 4 of the judgment the findings were as under:-

"While respectfully 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."

More close to the facts of the present case is the decision of the Supreme Court in case of Gurdial Batra Vs. Raj Kumar Jain, . In the said case, the property in question had been taken on rent for running of cycle/rickshaw repair shop. The tenant along with the said work started sale of televisions. The landlord filed a petition claiming that there is a change of user and the tenant is liable to be evicted. In paragraph 7 and 8 of the judgment, the Supreme Court held as under:-

"The landlord parts with possession of the premises by giving a lease of the property to the tenant for a consideration. Ordinarily, as long as the interest of the landlord is not prejudiced, a small change in the user would not be actionable.

In this case, the premises was let out for running of a repair shop. Along with the repair business, sale of televisions was temporarily carried on. We do not think this constituted a change of user within the meaning of Section 13(2)(ii)(b) of the Act so as to give a cause of action to the landlord to seek eviction of the tenant."

This Court in the case of Ujagar Singh Vs. Manohar Lal Anand, , also was concerned with a similar situation. The property was let for cycle repair but ration depot had been run therein. This Court held that it did not impair the value and utility of the premises and thus the petition for eviction was dismissed.

Identical is the position in the present case. As already mentioned above, business of sale of ice which was the purpose of letting is continuing. In addition to that, sale of coal and wood has been started in the property. It is not even held by any Court that it would impair the value and utility of the property. If immediately another business is started and the business for which it was let was also continuing the said ground of eviction without it having impaired the value and utility of the premises or detrimental to the interest of the landlord cannot be available. For these reasons, the judgment of the learned Appellate Authority cannot be sustained. The revision petition is allowed and the judgment of the learned Appellate Authority is set aside. Instead, the order of the learned Rent Controller dismissing the eviction petition is restored.