Vinod Kumar vs Bhagwat Sarup and others

J.V. Gupta, J.—This is tenant''s petition against whom eviction order has been passed by both the authorities below.

Landlords Bhagwat Sarup and Smt. Gita Devi filed the ejectment application on 22nd June, 1976, against their tenant Ved Parkash to whom the premises were let out vide rent note dated 22nd January, 1966, Exhibit P.W.4/A on a monthly rent of Rs. 75/-besides the house tax. In the said rent note premises are described to be "Godam Dukan Mandi". No specific purpose as such has been mentioned for which the premises were let out. The ejectment was sought, inter alia, on the ground that the demised premises were given on rent for the purpose of godown but the tenant converted it into Dhaba and in this way has changed the user of the demised premises and, thus, also impaired its utility.

In the written statement, these allegations were denied. It was pleaded in para 3 of the preliminary objections that the predecessor-in-interest of the landlords got installed a water tap in the building after getting due sanction from the Municipal Committee, Jind, for the use of the tenant for the Dhaba work. Again, in para 8 of the written statement on merits, it was pleaded that it was wrong that the building was taken on rent for godown. The fact is that the building was taken for running a Dhaba and this work is being carried out in the building from the very inception of the tenancy. The tenant never used it as godown. The landlords and their predecessor-in-interest have been seeing the tenant carrying the business of Dhaba from the very beginning of the tenancy. However, in any case, the landlords are estopped from taking this objection by their conduct. They never objected to its use as Dhaba.

In the replication filed on behalf of the landlords, these allegations in the written statement were simply denied. It was nowhere pleaded by the landlords that the premises were let out, for the first time, to the tenant vide rent note Exhibit PW-4/A and prior thereto there was no question of its letting out by their predecessor-in-interest.

The main controversy between the parties before the Rent Controller was as to whether the tenant has changed the nature of the premises in dispute from godown to Dhaba and if so to what effect. Evidence was led on behalf of the tenant to prove that even prior to the rent note dated 22nd January, 1966, he was running a Dhaba in the demised premises since 1959. He also got licence from the Municipal Committee, Jind, Vide Exhibit R-1 dated 14th December, 1965 for running Dhaba or hotel business. Certain letters, Exhibits R-3, R-4, R-5 and other postcards were also produced to show that since the year 1961, the tenant had been receiving letters on the address of Marwari Dhaba the business which was being done in the demised premises. However, all this evidence of the tenant was ruled out by the Rent Controller on the ground that the same was beyond the pleadings and, therefore, could not be looked into. On the basis of the rent note Exhibit PW 4/A, it was concluded that the premises were let out for godown and since the tenant was doing Dhaba business therein, it was a clear case of change of user and therefore, the tenant was liable to ejectment. Consequently, eviction order was passed.

In appeal, the learned appellate authority affirmed the said findings of the Rent Controller and thus maintained the eviction order. Dissatisfied with the same, the tenant has filed this petition in this Court.

It may be mentioned at this stage that during the pendency of the ejectment application before the Rent Controller, the original tenant Ved Parkash had died and his son Parmodh Kumar etc. were brought on the record as his legal representatives. Ultimately they contested the petition before the Rent Controller. At no stage any objection was taken by them that they are not the tenants in the demised premises after the death of Ved Parkash, the original tenant. However, by mistake, the learned Rent Controller passed the ejectment order against Ved Parkash, deceased. This mistake was corrected by the appellate authority.

The learned counsel for the petitioner contended that after the death of Ved Parkash, the original tenant, heirs and legal representatives could not be held to be tenants on the demised premises and therefore, on that account alone the Rent Controller had no jurisdiction to pass the ejectment order. As observed earlier, since they were brought on the record when the proceedings were pending before the Rent Controller and no such objection was taken by them at any stage, they could not be allowed to take this plea for the first time in this Court.

The learned counsel for the petitioner then contended that from the evidence on record it was amply proved that from the very inception of the tenancy since the year 1959, the premises we being used for doing Dhaba business therein, but this evidence led by the tenant has been ignored by the authorities below on the ground that no such plea was taken in the written statement which, according to the learned counsel is obviously wrong. It was further contended that trom the perusal of the written statement, it is abundantly clear that such a plea was taken but the authorities below have misconstrued the pleading. The learned counsel further argued that even from the rent note Exhibit P.W. 4/A it is clear that the premises were never let out as godown. The description of the premises is "Godam Dukan Mandi" and, therefore, the judgment relied upon by the lower appellate Court are not at all applicable to the facts of the present case. Even the Full Bench judgment of this Court in Des Raj v. Sham Lal (1980) 82 P.L.R. 278 is also clearly distinguishable.

On the other hand, the learned counsel for the landlords-respondents submitted that it has been concurrently found by both the authorities below that there was a change of user and that being a finding of fact could not be interfered within revisional jurisdiction. It was also contended that the tenant has failed to prove by any cogent evidence that prior to the rent note dated 22nd January, 1966, the Marwari Dhaba was being run in the demised premises. Since no specific plea was taken in the written statement, the evidence led by the tenant in this behalf was rightly ignored by the authorities below. An argument was also raised that in case the tenant was already running Dhaba prior to the execution of the rent note, then this should have been written in the rent note itself. Since there was no such stipulation in the rent note, that clearly proves that the Dhaba business was started in the demised premises after the execution of the rent note, when the premises were let out for godown purposes. In the presence of the said rent note Exhibt PW-4/A, the oral evidence led by the tenant that he was running the Dhaba business in the demised premises prior to the execution of the rent note was not admissible.

I have heard the learned counsel for the parties and have also gone through the relevant evidence on the record. The evidence of the tenant that prior to the execution of the rent note Exhibit PW-4/A, Ved Parkash had been running Dhaba business in the demised premises since the year 1959 when he was the tenant under the predecessor-in-interest of the present landlords has been ignored by the authorities below on the simple ground that no such plea was taken in the written statement and, therefore, no amount of the evidence could be looked into when no such plea was taken. This observation of the authorities below is patently wrong. From the written statement filed on behalf of the tenant Ved Parkash dated 2nd August, 1976, it is quite evident that such a plea was taken therein. When the tenant pleaded in the written statement that from the very inception of the tenancy he is carrying on the business of Dhaba in the demised premises, he clearly meant that when the premises were taken, for the first time, in the year 1959. That is so because earlier he mentions in para 3 of the preliminary objection that the predecessor-in-interest of the landlords got installed a water tap in the building after getting due sanction from the Municipal Committee, Jind, for the use of the tenant for the Dhaba work. There is evidence on the record that this tap was installed in the year 1962, which is prior to the execution of the rent note on 22nd January 1966. In these circumstances the finding of the authorities below it, vitiated being illegal and improper. The tenant has led documentary evidence to prove that prior to the year 1966, he has been using the demised premises for doing Dhaba business therein since the year 1959. He has produced in evidence Exhibit R-1, licence which Ved Parkash obtained for running a hotel from the Municipal Committee, Jind, on 14th December 1965 which is prior to the execution of the rent note. Net only that he produced postcards Exhibit R 3, R-4, R-5 and many other to prove that prior to the said rent-note, the tenant Ved Parkash had been receiving letters on the address of Marwari Dhaba, Jind. Of course, on the address the premises as such are not mentioned, but there is evidence on the record to show that this Marwari Dhaba was being run prior to the year 1966 in the demised premises, which evidence, as observed earlier has been wrongly ignored by the authorities below. Apart from that no evidence has been led on behalf of the landlords to prove that prior to the execution of the rent note, this Marwari Dhaba business was being run somewhere else other than the demised premises. It is rather suprising that Bhagwat Sarup, landlord, who appeared as PW-5, stated that he does not know when this Dhaba was started. Not only in his statement, in his ejectment application as well it was never mentioned that since when the tenant has changed the user of the premises or since when the tenant has started running Dhaba business. According to the evidence led by the landlords Dhaba business was being run in the demised premises two year prior to the ejectment application filed in the year 1976 which is apparently wrong because there is cogent evidence on the record to prove that this business was being run since long. On the other hand, the tenant has produced RW-5 to RW-9 to prove that Dhaba business is being run in the demised premises since long, i. e. prior to the execution of the rent note. This is also evident from the documentary evidence in the forms of postcards to prove that since the year 1959 the tenant Ved Parkash had been receiving letters on the address of Marwari Dhaba. As observed earlier, there is no evidence on the record led by the landlords that this Marwari Dhaba business was situated at any place other than the demised premises. Thus from the documentary evidence on the record, it is amply proved that prior to the execution of the rent note in the year 1966, the tenant had been running the Dhaba business in k the demised premises since the year 1959. Once it is so found, then the tenant was right in pleading that from the very inception of the tenancy, the Dheba business was being run in the premises in dispute. The mere fact that in the rent note, it was not so mentioned was not of much consequence. As a matter of fact, no purpose as such was mentioned in the rent note. The premises could not be said to have been let out for godown purposes as held by the authorities below. The description in the rent note is "Godam Dukan Mandi". Not only that, one of the terms of the rent note is that door of the centre will remain open. It further indicates that the premises were not let out for godown purposes only. In any case, the findings of the authorities below are vitiated because the premises are mentioned to be "Godam Dukan Mandi" and not godown only. If it is so, then the Full Bench judgment in Des Raj''s case (supra) is also distinguishable and has no applicability to the facts of the present case. It was not disputed that if no specific purpose is mentioned in the rent note, then the use from the very inception of the tenancy will be the determining factor to find out for which purpose the premises were let out.

From the evidence on the record, the landlords have failed to prove that there was any change of user as alleged because the premises were never let out for the purposes of godown. Rather, on the other hand, from the very inception of the tenancy, the same were being used for running Dhaba business.

No other point arises nor has been argued.

Consequently, the petition succeeds, the eviction order is set aside and the ejectment application is dismissed with no order as to costs.