Subhash Chander vs Baldev Singh and another

G.R. Majithia, J.—This petition is directed against the order of the learned Appellate Authority who on appeal affirmed the order of the learned Rent Controller and ordered eviction of the Petitioner-tenant from the demised premises on the ground that the tenant has converted the shop into a godown and this amounted to change of user.

The facts in brief are that the landlord filed an application for eviction u/s 13 of the East Punjab Urban Rent Restriction Act (for short the Act) and sought eviction on three grounds namely; that the tenant was in arrears of rent since April, 1982; the shop was tenanted for the sale of English wine and Beer for which he bad a valid licence. In March 1982, his licence was cancelled and he had closed the shop for a period exceeding four months; that the Respondent had effected change of user from wine shop to shop-cum-godown for selling and stocking utensils and other allied material without the consent in writing of the landlord and that the tenant had associated Smt. Kailash Rani as a partner in the business. The learned Appellate Authority after appraisal of the evidence found that the only ground which stands proved is that the tenant has converted the shop into a godown. He is stocking utensils in the shop and is running the business of selling utensils in another shop situate at Gandhi Chowk Gurdaspur.

u/s 13(2)(ii)(b) of the Act, a landlord can seek eviction of his tenant if the latter had used the building for a purpose other than for which it was leased out. In the eviction application in para No. 2(bb), the landlord pleaded as under:

That the Respondent be ejected from the shop in question because he has effected the change of user from a wine shop to a shop-cum-godown for selling and stocking utensils and other allied material without the consent in writing of the Petitioner. And he has now also started the business of cloth very recently without the permission of the applicant.

In the corresponding paragraph of the written statement it was pleaded as under:

Para No. 2(bb) of the application is incorrect and denied. The Respondent has not effected any change of user, as alleged in this para of the application. It is submitted that at present, the Respondent is carrying on the business of cloth in the shop under the name and style of "Bharat Handloom Empurium". A partnership deed dated 1.4.83 was executed with Smt. Kailash Rani widow of Sh. Puran Chand in the following grounds:

Subhash Chander 40%

Smt. kailash Rani 60%

The shop in question was not let out for any exclusive business. The shop is being used for the purpose of business and trade.

Admittedly no rent note has been produced from which it could be determined what was the original purpose for which the demised premises were let out. The landlord appeared as A.W.1 at the trial and he did hot state as to what was the specified original purpose for which tenancy was cheated. Admittedly the shop was originally let out for carrying out the business of liquor vend. The rigour of Section 13(2)(ii)(b) of the Act would be attracted if the change of user had caused any mischief or detriment or impairment to the shop. If the tenant is using the demised premises for another commercial purpose it will not amount to change of user unless it has resulted in impairing the value and utility of the building. This matter is not more res integra and stands concluded by the Apex Court in Mohan Lal v. Jai Bhagwan (1988-1) P.L.R. 670 (S.C.). The matter before the Apex Court arose in the following circumstances:

The landlord granted lease to the tenant and the purpose of lease as stated in the rent not was as under:

That the tenant will run the business of English Liquor Vend in the shop--will do sale of Liquor.

The tenant started doing the business of general merchandise at the shop in dispute. The tenant had a licence of liquor vend in his favour in March 1979 and was not renewed thereafter and as such he had to discontinue that business of liquor vend at the demised premises and had to start the general merchandise. The landlord sought the eviction on the ground that this act of the tenant falls within the ambit of Clause (b) of Section 13(2)(ii) of the Act. The High Court upheld the order of eviction but on appeal to the Supreme Court, it was held thus:

In the background of the purpose of rent legislation and inasmuch as in the instant case the change of user would not cause any mischief or detriment 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 Section 13(2)(ii)(b) of the Act. The High Court, therefore, was in error.

The ground on which the landlord is seeking eviction of his tenant is not sustainable at law. Moreover, it cannot be allowed on facts too. No evidence has been brought on record by the landlord as to what was the original specified purpose of lease and that the tenant has started using it for a purpose other than it was leased oat. The finding of the leaned Appellate Authority is not based on any evidence. Resultantly the order of the learned Appellate Authority is set aside and the eviction application is dismissed. However, the parties,are left to bear their own costs.