Tribhuwan Kumar vs Gita Ram Kalsy

J.V. Gupta, J.—This is tenant''s revision petition against whom the ejectmemt application was dismissed by the Rent Controller, but eviction order was passed in appeal.

The landlord. Gita Ram Kalsy sought ejectment of his tenant Tribhawan Kumar from the premises which consists of one room. It was pleaded that the said room was given on a monthly rent of Rs. 98/-, including house-tax. The ejectment was sought on the ground that the said room was given on rent for personal use and for the use of his customers and servants, to be used as a rest house. According to the landlord, the tenant has changed the user from personal use to that of use as a godown and therefore, the tenant was liable to ejectment

In the written statement filed on behalf of the tenant, he denied the rate of rent as Rs 98/- p m., but stated that it was Rs. 85/- p.m. and that he was not liable to pay house tax. It was also denied that the demised premises were taken for personal use or for the use of the customers or servants as rest room According to the tenant, the premises were taken for running business and not for residence Thus, there was no question of any change of user, as alleged. The learned Rent Controller found that the rate of rent was Rs 85/- p.m up to 15.9.1980 and after which the landlord could seek the enhancement of rent at the rate 2-1/2 per cent of the amount by which there was an increase in the levy of house-tax, but no such claim was made. As regards the change of user, the learned Rent Controller found that the landlord has failed to prove the same by cogent evidence. It was also observed:

The applicant herein had taken a specific plea and had led evidence in support of that plea and he has failed to prove that the premises in question had been leased out to the Respondent for residential purpose. Even if a Respondent in an eviction application or a Defendant in a suit is found to have taken a false plea that by itself cannot warrant the passing of an order of ejectment in favour of the landlord or the Plaintiff, as they are supposed to stand on their own legs.

The other pleas taken by the landlord were also not accepted. Ultimately, the eviction application was dismissed.

In appeal, the only controversy between the parties was, whether the tenant was liable to eviction on the ground of change of user. The argument raised before the Appellate Authority was that the tenant was liable to ejectment, on his own admission when he stated in the written statement that the premises were let out as shop and while in the witness box he admitted that the same was being used as a godown. This contention of the landlord succeeded before the Appellate Authority. On that ground alone, the eviction order was passed, though it was found as a fact that the landlord had failed to prove that the premises were let out for residential purposes, as alleged in the ejectment application According to the Appellate Authority, on the admission of the tenant himself, he was liable to ejectment, even if the landlord bad failed to prove the case, as set up by him in his ejectment application. Consequently, eviction order was passed. Dissatisfied with the same, the tenant has filed this revision petition in this Court.

The learned Counsel for the Petitioner contended that the tenant cannot be ejected on the plea which has not been taken by the landlord in his ejectment application. In support of his contention he referred to L. Balaukundas v. Kothandapani A. I. R. 1971 Mad. 422. On the other hand, the learned Counsel for the landlord-Respondent submitted that on the admission of the tenant himself, he was liable to ejectment, because, according to him, the premises were given on rent as a shop; whereas he admitted in his statement that the same were being used as a godown. Thus, argued the learned Counsel, the view taken by the Appellate Authority in this behalf was correct. In support of his contention, he referred to Srinivas Ram Kumar Vs. Mahabir Prasad and Others, , Jagjivandas Bhikhabhai Vs. Gumanbhai Narattamdas, and Sudarshan Trading Company Limited Vs. L. D''Sauza, .

After hearing the learned Counsel for the parties and going through the case law cited at the Bar, I am of the considered opinion that no ejectment order could be passed against the tenant on the ground which was not taken by the landlord in his ejectment application. Admittedly the landlord came with a specific plea that the premises were let out for residential purposes and the tenant has now changed the user by using it as a godown. The landlord failed to prove that the premises were let out for residential purposes. Once he fails to prove the same, the question of change of user does not arise and it presupposes that the premises were let out for a particular purpose and later on the tenant was using the same for a different purpose. This the landlord has failed to prove. Both the authorities below have found as a fact that the landlord has failed to prove the premises were let out for residential purposes. In this situation, any admission made by the tenant in his statement that the premises were being used as a gadown, was of no significance. He was to meet the case of the landlord, as set up by him in his ejectment application. According to his plea, the premises were let out for a business purpose Rather the plea taken in the written statement is that the premises are being used for the purpose for which it was taken. The tenant nowhere pleaded that it was taken for residential purpose In his statement as RW 1 also, the tenant stated that the premises were taken for business purpose. If the premises were taken for business purpose, as admitted by him, then, in that situation, it becomes immaterial, whether the same were to be used as a shop or a godown. In any case, this was never the case set up by the landlord and therefore, he was not entitled to seek ejectment of the tenant on any alleged admission of the tenant. The whole approach of the Appellate Authority in this behalf was wrong, illegal and misconceived. It is a special Act and the ejectment can be ordered on the grounds specified u/s 13 of the East Punjab Urban Rent Restriction Act, 1949. The landlord has failed to prove the case set up by him and the tenant could not be taken by surprise as to make himself liable for eviction on a ground that was never pleaded. The authorities relied upon by the learned Counsel for the Respondent have absolutely no applicability to the facts of the present case. It has nowhere been laid down therein that the tenant could be ejected on a ground other than the one which was not pleaded by the landlord.

As a result of the foregoing discussion, this petition succeeds. The order of the Appellate Authority is set aside and that of the Rent Controller, dismissing the ejectment application, is restored with costs.