Shri Sat Pal Singh vs Shri Rameshwar Singh Proprietor of M/S Capital Photo Studio

D.V. Sehgal, J.—This revision petition by the landlord-Petitioner is directed against the judgment dated 2-8-1979 passed by the learned Appellate Authority, Ambala u/s 15(4) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short the Act'') whereby an appeal filed by the tenant-Respondent against the order of his ejectment from the shop in dispute passed by the learned Rent Controller, Ambala Cantt. vide his judgment dated 21-2-1979 has been set aside and the application u/s 13 of the Act filed by the Petitioner has been dismissed.

The Petitioner is the landlord and the Respondent is a tenant under him in shop No. 167/12, Saddar Bazar, Ambala Cantt, at a monthly rent of Rs. 60/- besides water tax. An application u/s 13 of the Act was filed by the Petitioner seeking ejectment of the Respondent on three grounds, namely, that he had not paid or tendered rent and water tax for the period from 1-5-1975 to 30-4-1976; that he has made additions and alterations in the tenancy premises without any right and without the permission in writing of the Petitioner and has thus changed the design and shape of the shop and that he has started using the premises for sale of handloom articles without any right and without the consent in writing of the Petitioner. It is alleged that the shop was let out to him for carrying on the business of photography. The Respondent filed his written statement. He tendered the arrears of rent along with interest and costs on the first date of hearing and, therefore, the ground of non-payment of rent was rendered non-existent. After receiving the evidence of the parties, the learned Rent Controller ordered eviction of the Respondent on the ground that he had converted the verandah in front of the shop in a shape of room and this amounts to material impairment of the value and utility of the demised premises. He, however, negatived the ground of change of user of the shop by holding that simple addition of the business of selling bed sheets besides carrying on the business of photography by the Respondent did not come within the mischief of Clause (ii)(b) of Sub-Section 2 of Section 13 of the Act.

On an appeal filed by the Respondent against the order of eviction, the learned Appellate Authority vide judgment under revision, reversed the finding of the learned Rent Controller on the second ground also and held that the Respondent can at the worst be held to have put up wooden structure in the verandah so as to use the portion of the verandah in front of the shop for his business and that this did not amount to material impairment of the value and utility of the premises within the meaning of Clause (iii) of Sub-Section 2 of Section 12 of the Act. As a result, the order of ejectment was set aside This is how the Landlord has filed the present revision petition in this Court.

I have heard the learned Counsel for the parties and have also gone through their pleadings as also the evidence adduced by them before the learned Rent Controller. The plan Exhibit A 7 on the record shows that 8 feet wide verandah is in front of the shops adjoining on either sides of the one under lease with the Respondent. It has been stated by the Petitioner while appearing as his own witness as PW. 5 that there is a block of shops belonging to himself and his brothers and there is a verandah in front of all these shops The shop under lease with the Respondent belongs to him He has no doubt stated that the Respondent has converted the verandah in front of the shop into a room by using wooden petition. It has, however, come in the statement of Gian Chand Jain, AW. 1, in cross examination that the portion of the verandah in front of other shops have been similarly partitioned by putting up pardah wall or wooden planks. He however, could not say when these partitions in the verandah were erected. He denied that right from the beginning these partitions are existing in the verandah. Jasbir Singh son of the Petitioner appeared as AW. 2. In cross-examination he denied knowledge of the fact that the wooden partition had been erected after demolishing the walls in the verandah. Neither in the application u/s 13 of the Act nor in the course of evidence has it been pointed out specifically as to at what point of time did the Respondent erect wooden partition in the verandah in front of his shop and converted it into a room. The case of the Respondent on the other hand is that this partition in the verandah was in existence right from the inception of the tenancy and even before that. The Petitioner in the course of his statement as A. W. 5 has admitted that in the beginning the rate of rent of the shop in dispute was Rs. 24/- per month Later on it was increased to Rs. 33/- per month and for the last 2 or 2 1/2 years increased rent at the rate of Rs. 60/- per month is being paid by the Respondent.

In the above circumstances, it was incumbent on the Petitioner to prove by specific evidence that the wooden partition in the verandah was erected by the Respondent after the rate of rent of the shop was raised to Rs 60/- per month. Since there is no evidence to this effect and rather the allegation made is vague, it has to be inferred that the alleged alteration in the verandah was made much prior to the increase effected in the rate of rent from Rs. 33/- to Rs. 60/- per month and in such a situation the Petitioner would be taken to have acquiesced in the alleged addition and alteration made in the verandah in front of the shop by the Respondent. I seek support for this view from the Division Bench judgment of this Court in Ved Parkash v. Darshan Lal Jain (1986) 90 P. L. R. 90.,

The other contention once again raised by the learned Counsel for the Petitioner was that from the inception of the tenancy the shop was being used by the Respondent for carrying on the business of photography. As found by the authorities below in addition to the work of photography the Respondent has added the business of selling bed sheets and that since the business of selling bed sheets is not ancillary to the business of photography it is a case of change of user of the premises. In the present case it has not been shown that there was any stipulation in a rent note that the shop in dispute had been let out to the Respondent specifically for the purpose of carrying on the business of photography. In the absence of any such stipulation any business in the shop can be carried on so long as the character of the demised building remains that of a shop. 1 find support for this view from the full Bench judgment of this Court in Des Raj v. Sham Lal (1980) 82 P. L. R. 647 (F. B.). There is, therefore, no force in this submission also.

Consequently, finding no merit in this revision petition, the same is dismissed. The parties are however, leff to bear their own costs.