1. The tenant-petitioner, had filed this revision petition against the order of the Appellate Authority, Jullunder, dated April 17, 1976, whereby the order of the Rent Controller, Jullundur, dated September 25, 1975, directing his ejectment was maintained.
2. The premises, in dispute, i.e., the vacant site measuring 4 marlas situated in Rasta Mohalla, Jullundur, were rented out to the petitioner at a monthly rent of Rs. 20 vide rent note, Exhibit A-1 dated October 2, 1964, for selling firewood. The ejectment of the tenant was sought on the grounds that, (a) the tenant had not paid to the landlords the rent of the demised premised since June 2, 1973. (b) that the respondent had been using the disputed premises for the purpose other than that for which they were taken on rent by him, (c) that the respondent had committed such acts as were sure to impair the value and utility of the disputed premises; (d) that the respondent had been guilty of such acts and conduct as were a nuisance to the occupiers of the buildings in the neighbourhood and (e) that the respondent had violated the terms and conditions, as contained in the aforesaid rent deed. The allegations of the landlord were controverted in the written statement filed by the petitioner. On the pleading of the parties, the Rent Controller, framed the following issues:
1. Whether a valid notice was served on the respondent?
2. Whether the petition is bad for non-joinder of necessary parties?
3.Whether the respondent is liable to ejectment from the demised premises on the grounds alleged in the application except the non-payment of rent?
The Rent Controller passed the order of the eviction of the petitioner from the demised premises on the ground that he had impaired the value and utility of the premises, in dispute. The other grounds, on which the ejectment of the petitioner was sought, were found against the landlords. In appeal, the Appellate Authority reversed the finding of the Rent Controller on the ground that the tenant had impaired the value and utility of the demised premises, and came to the conclusion that this ground was not established by the landlords and, therefore, the eviction order, based on it, could not be sustained. However, the Appellate Authority maintained the order of eviction of the tenant on the other ground, that is, he (the tenant) had been using the premises, in dispute, for the purpose other than that for which they had been taken on rent by him. Feeling aggrieved against the same, the tenant-petitioner has come up in revision to this-Court.
3. The learned counsel for the petitioner, contended that on the findings, given by the Appellate Authority, it could not be held that the tenant-petitioner, had used the premises, in dispute, for a purpose other than that for which they had been taken on rent by him because it had been concurrently found by both the authorities below that the business of selling firewood, for which the demised premises were let out in the beginning was still being carried on by the tenant. In addition thereto, he was also tethering a buffalo and also selling tool therein and, therefore, in there circumstances, the order evicting the petitioner from the premises, in dispute, could not passed by the Appellate Authority. In support of this contention, the learned counsel placed reliance on the firm Himalayan Traders v. Narain Dass, (1966) 68 Pan LR 367. On the other hand, the learned counsel for the respondents contended that the premises, in dispute, were let out to the petitioners for running the business of selling the firewood only and now the tenant had been found to be keeping his buffalo, and toori therein and, thus, he has been using the disputed property for the purpose other than that for which they were rented out to him. In support of this contention, the learned counsel placed reliance on Des Raj v. Sham Lal. AIR 1980 Punj and Har 229 (FB), and Both Ram v. Mathra Dass, 1976 Rent Cj (SN) 32. The learned counsel further contended that in any case, the order of ejectment could be sustained on the ground on which the Rent Collector came to the conclusion to the tenant was guilty or impairing the value and utility of the premises, in dispute.
4. After hearing the learned counsel for the parties at a great length and going through the record, I find force in the contention raised by the learned counsel for the petitioner.
5. It has been held by the Appellate Authority that it is well known that the people keep the buffaloes in towns usually for business purposes and tethering of the cattle and selling of toori is certainly a different user and has nothing to do with the sale of wood. These observations, in my opinion, are without any material on the record and are merely based on surmises and conjectures. There is no evidence on the record that the tenant was doing the business of selling milk. It could not be held on surmises alone that the people keep ' the buffaloes in towns usually for business purposes'.
This approach of the learned Appellate Authority was wholly illegal and improper and thus, the finding arrived on its basis is vitiated. The Local commissioner, who was appointed by the Rent Controller, inspected the spot on October 4, 1974. It has been stated in his report, Exhibit A-7, that he found an iron Kanda hanging in between the two rooms shown red in the map. In the front room, wooden pieces were lying, a buffalo was standing and beside the buffalo, a wooden kund for the buffalo was lying. Some green fodder was also lying beside the wooden pieces, small in quantity. It has also been stated therein that no damages to the demised premises was noticed by him. Thus, the only evidence on the record is that the tenant was using the premises for the purpose for which they were originally rented out, that is, for carrying out the business of selling fire-wood though along therewith, he had also started tethering his buffalo therein.
Section 13(2)(ii)(b) of the East Punjab Rent Restriction Act, 1949, reads:--
13. (1) xxx xxx (2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant is satisfied:--
(i) xxx xxx (ii) that the tenant has after the commencement of this Act without the written consent of the landlord:--
(a) xxx xxx (b) Uses the building or rented land for a purpose other than that for which it was leased, or;
The language of the abovesaid provision is itself suggestive that if the tenant, after the commencement of the aforesaid Act, uses the building of the rented land for the purpose other than that for which it was leased out, in other words, the purpose, for which the demised premises were leased out, in the beginning, was being carried out no more therein, the landlord was competent to seek his remedy under Section 13(2) of the above-mentioned Act, but if the premises, in dispute, were being used for the same purpose for which they were originally let out and in addition thereto, a part of the building or the rented land, was also used for some other purpose, that per se would not give the landlord the right to claim the eviction of the tenant. In firm Himalayan Traders case (1966-68 Pun LR 367) (supra), it was held:--
'If it were the intention of the legislature that where a small part of the demised premises is not used for the purpose for which it had been let and that was to be ground of ejectment, it would have used the same phraseology as in S. 13(2)(ii)(a) of the East Punjab Urban Rent Restriction Act and then it would have used in Section 13(2)(ii)(b) also the words 'any portion thereof'. This it has not done. What it has done is that it has said that when the building is used for a purpose other than that for which it was leased and, therefore, unless the part so used can itself be described as building, the building to which this part of the clause refers must be taken as a whole. So that user of one room in a building taken as rent for residential purpose, as the godown, does not come under Section 13(2)(ii)(b) of the Act.'
The authorities cited on behalf of the respondent are not at all applicable to the facts of the present case. In all those cases, the original purpose, for which the premises were rented out, was abandoned by the tenants and the premises were being used for some other purpose and, therefore, under those circumstances, it was held that the tenants were liable to be evicted on that ground, therefrom.
6. As regards the other ground, that the tenant-petitioner had impaired the value and utility of the premises, in dispute, which did not find favour with the Appellate Authority, but on which the Rent Controller ordered the ejectment of the petitioner from the demised premises, has not been substantiated by any cogent evidence on the record, and, therefore, it has been rightly held by the Appellate Authority that the tenant had not impaired the value and utility of the demised premises.
7. For the reasons recorded above, this revision petition succeeds and is allowed. The order of the Appellate Authority is set aside and the application for the ejectment of the tenant-petitioner from the demised premises is dismissed, but with no order as to costs.
8. Revision allowed.