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Dharam Chand Vs. Mathura Dass - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 848 of 1980
Judge
Reported inAIR1982P& H224
ActsEast Punjab Urban Rent Restriction Act, 1949 - Sections 11 and 13(2)
AppellantDharam Chand
RespondentMathura Dass
Cases ReferredPrem Chand v. Beni Madhav
Excerpt:
.....use and residence in part thereof, a part of it is used by him as residence ever since he took the rented premises on rent, the right of residence was not prohibited by the terms of the lease, his living in the part of the rented premises was essential part of his business, he was an old man of 70 years infirm and of weak eye-sight, his wife helped him in the business of the bakery, he cannot carry on his trade and business without living in the demised premises and that he guards the premises, in dispute, by living there. palaniappa chettiar's case (1970-2 scc 290) (supra), it has been held that when the landlord failed to show that any substantial part of the building was being used for a purpose different from the purpose for which the building had been let out, the claim of the..........use and residence in part thereof, a part of it is used by him as residence ever since he took the rented premises on rent, the right of residence was not prohibited by the terms of the lease, his living in the part of the rented premises was essential part of his business, he was an old man of 70 years infirm and of weak eye-sight, his wife helped him in the business of the bakery, he cannot carry on his trade and business without living in the demised premises and that he guards the premises, in dispute, by living there.it was also pleaded that he had been living in the demised premises for more than 19 years had during this period, the landlord had the knowledge of the same as he accepted the rent, never protested against such user, had always acquiesced in the user of the demised.....
Judgment:
ORDER

1. The tenant-petitioner has filed this revision petition against the order of the Appellate Authority, Patiala, dated March 18, 1980, whereby the order of the Rent Controller, dated Feb. 15, 1979, directing his ejectment was maintained.

2. The landlord-respondent sought the ejectment of the petitioner from the demised premises inter alia on the ground of change of user as contemplated under S. 13(2)(iii)(b) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter called the Act), which provides that if the tenant has used the building or the rented land for a purpose other than for which it was leased, he is liable to be ejected. It was averred in para 4 of the ejectment application that the tenant had changed the user of the shop, in dispute, without the written consent of the landlord and as such, he was liable to be evicted therefrom, and that he had started residing there along with his family in addition to his bakery business. The rent-note, dt. March 6, 1958, executed for eleven months, stipulating a monthly rent of Rs.30/-, is, Exhibit A. 1.

In the written statement it was stated that the tenant had not changed the user of the demised premises, he had taken the premises for use and occupation as his shop of bakery and also for his use and residence in part thereof, a part of it is used by him as residence ever since he took the rented premises on rent, the right of residence was not prohibited by the terms of the lease, his living in the part of the rented premises was essential part of his business, he was an old man of 70 years infirm and of weak eye-sight, his wife helped him in the business of the bakery, he cannot carry on his trade and business without living in the demised premises and that he guards the premises, in dispute, by living there.

It was also pleaded that he had been living in the demised premises for more than 19 years had during this period, the landlord had the knowledge of the same as he accepted the rent, never protested against such user, had always acquiesced in the user of the demised premises, and as such, he was estopped from taking this plea. In the replication filed on behalf of the landlord, it was stated that it was wrong that the shop, in question, was taken on rent by the tenant for residential purpose along with the business of bakery. The living of the tenant in a part of the rented premises was not an essential part of his business. It was wrong that his residence in the demised premises was required for guarding the building. It was also wrong that he had been living in the premises for the last 19 years and that it was also wrong that the landlord had acquiesced in the use of the premises, in dispute, for the residence of the petitioner. On the pleadings of the parties the learned Rent Controller framed the following issues :

1. Whether the respondent has changed the user of the demised premises? If so, to what effect?

2. Whether the respondent is liable for ejectment?

3. Relief.

On issue No. 1, it was found that the petitioner had changed the user of the demised premises. According to the Rent Controller, they were rented out for running a shop whereas on the admission of the tenant himself, he was also residing therein with his family. As a result, the order of ejectment was passed against the tenant. In appeal, this finding of the Rent Controller was maintained by the Appellate Authority. Feeling aggrieved against the same, the tenant has come up in revision to this Court.

3. The learned counsel for the petitioner, contended that no specific purpose was provided in the rent-note, Exhibit A. 1, nor was there any mention of any particular business to be carried on by the petitioner. the only recital therein is that the shop, in dispute, had been rented out to the petitioner at the rate of Rs.30/- per month. According to the learned counsel, from the evidence on the record, it has been amply proved that the tenant was residing therein from the very beginning as it was necessary for him to reside therein for doing his bakery business. The premises, in dispute, are L-shaped and therefore, the hind portion of the shop is being used for residence whereas the front portion is being used for running the bakery business.

It was further contended that in any case, the major portion of the building was still being used for business purposes and it was only a small portion in which the tenant was residing and, therefore, there was no change of user of the building as such, i.e., the entire building as contemplated u/s. 13(2)(ii)(b) of the Act. The argument proceeds that the dominant purpose of the demised is still the carrying on of the business and, therefore, he is not liable to be ejected therefrom. In support of his contention, the learned counsel placed reliance on Sagar Mal v. Shree Seeta Ram, (1980) 1 Rent LR 33; Firm Himalayan Traders v. Narain Dass, (1966) 68 Pun LR 367; Rameshwar Dass v. Rishi Parkash, 1964 Cur LJ 513; Sant Ram v. Rajinder Lal, AIR 1978 SC 1601; Ram Niwas v. Union of India, 197 Ren CR 425 and M. K. Palaniappa Chettiar v. A Ponnuswamy Pillai, (1970) 2 SCC 290. He also referred to a judgment rendered by me in Civil Revn. Petn. No. 631 of 1976, (Amin Chand v. Gian Chand) decided on Aug. 25, 1981 : (reported in AIR 1982 Punj & Har 31).

On the other hand, the learned counsel for the landlord-respondent, submitted that according to the evidence of the tenant himself, he started residing first in the demised premises and then he started his bakery business therein. His family consists of six person, i.e., two sons, two daughters, his wife and he himself. Even the marriage of one of his daughters was celebrated in the demised premises. Under the circumstances, it cannot be said that the dominant purpose is the carrying on of the bakery business; rather, according to the learned counsel almost the whole of the demised premises are being used for residential purposes though a very small portion thereof is being used as a shop. As the tenant never obtained any permission, either oral or in writing, for the change of the user of the demised premises, he is liable to be ejected therefrom u/s. 13(2)(ii)(b) of the Act. According to the learned counsel, though there is no specific purpose for which the demised premises, were rented out, but at the same time, what was rented out was a shop and, therefore, it would mean that it was for the purpose of carrying on of the business and not for residence. In support of this contention, the learned counsel placed reliance on Chhaju Ram v. Tulsi Das, (1977) 2 Ren CR 156 : (AIR 1977 NOC 222) (P & H) and Balak Ram v. B. N. Gupta, (1977) 2 Rent LR 83 (Him Pra).

4. I have heard the learned counsel for the parties at a great length and have also gone through the record.

5. According to the Appellate Authority, there is no evidence on the record that the petitioner took the demised premises for running a bakery and since it was a shop and was being used by the petitioner for residence which was never the intention of the parties when the rent-note, exhibit A-1, was executed the petitioner is liable to ejectment. Main reliance in this behalf was placed by both the Courts below on the judgment of the Himachal Pradesh High Court in Balak Ram's case (1977-2 Rent LR 83) (supra). In my considered opinion, both these findings arrived at by the learned Appellate Authority are wrong and against the record.

6. The landlord-respondent in his ejectment application has himself stated that the tenant had started residing in the shop, in dispute, along with his family members, in addition to his doing the bakery business. Thus, it cannot be said that the tenant was not using the premises, in dispute, for his bakery business. It is the common case of the parties that in addition to the bakery business, the tenant had also started residing therein, which according to the landlord, was for the last four or five years whereas according to the tenant, he was residing therein from the very inception of the tenancy as the demised premises were taken on rent for both the purposes. It is also the common case of the parties that the premises, in question, were L-shaped and the tenant was using the front portion as his shop and the rear portion for his residence. The landlord has not led any evidence to prove the total area of the demised premises and out of that how much is being used by the tenant for his residential purposes. The tenant produced Hira Lal, R. W. 4, who was an Assistant Engineer (retired). He filed the plan of the property, Exhibit RW4/A. The total area of the demised premises given therein is 918 square feet. According to this witness area measuring 714 square feet was being used for bakery purposes whereas the area measuring 204 square feet was being used for residence. There is no rebuttal to this evidence on behalf of the landlord. Thus, it has been amply proved on the record that only a small portion of the demised premises was being used for residential purposes. The argument raised on behalf of the landlord-respondent, however, is that the family of the tenant consisted of six persons and, therefore, it was not possible for them to reside in such a small accommodation. This contention cannot be accepted for the simple reason that in the first instance there is no evidence to this effect and secondly, it will depend upon the facts and circumstances of each case whether a family of six persons can live in such an accommodation or not. There is nothing uncommon in the present circumstances for the people to reside in such small accommodation particularly when the tenant-petitioner is doing only bakery business at a very small scale. Apart from that, the landlord-respondent has not proved his case that the tenant started residing in the demised premises four or five years back, as alleged by him, in his ejectment application. In case, he was residing earlier somewhere else, then it was not difficult for the landlord to prove, by cogent evidence, the premises he was occupying earlier. On the other hand, it has been proved on the record from the evidence of the tenant-petitioner that he was residing in the demised premises from the very inception of the tenancy. It may be that in the rent-note, no particular purpose for which the premises were rented out to him is given, but from the evidence on record, it is evident that the tenant-petitioner was residing therein from the very beginning of the tenancy and the landlord-respondent never objected to the same. Thus, both the said findings arrived at by the Appellate Authority are against the record and even against the case of the landlord-respondent as set up by him in his ejectment application. Under these circumstances, it can safely be held that the tenant-petitioner is occupying a very small portion of the demised premises for his residence. The dominant purpose is still the bakery business for which the premises were rented out to him. In M. K. Palaniappa Chettiar's case (1970-2 SCC 290) (supra), it has been held that when the landlord failed to show that any substantial part of the building was being used for a purpose different from the purpose for which the building had been let out, the claim of the landlord had to fail irrespective of the plea taken by the tenant to resist the application. In that case also, one of the grounds of ejectment was that the tenant had used the building for a purpose other than that for which it was leased out. On this finding the judgment of the Madras High Court was set aside, by their Lordships of the Supreme Court and the application for ejectment was dismissed.

7. Similarly, in Sagar Mal's case (1980-1 Rent LR 33) (Punj & Har) (supra), R. N. Mittal, J., held that if the dominant purpose remains the same, it will not amount to the change of user of the building. In the said case, the building consisted of three rooms which were let out for business purposes and one of the rooms was used for residential purposes.

8. In Civil Revision Petition No. 631 of 1976, Amin Chand's case (supra) reported in AIR 1982 Punj & Har 31--I had also the occasion to consider the provisions of S. 13(2)(ii)(b), of the Act. The view that I have taken therein is that if the premises 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 used for some other purpose, that per se would not give the landlord the right to claim the eviction of the tenant from the dismissed premises.

9. In Sant Ram's case (AIR 1978 SC 1601) (supra) also it has been held that the landlord's acquiescence over a long stretch of time reinforces the case of the tenant that purpose was twofold. The common experience of life lends credence to this case and none, but those who live in ivory towers can refuse to look at the raw realities of life while administering justice. In view of these decisions the landlord-respondent has failed to prove that the tenant-petitioner has used the entire building for a purpose other than that for which it was leased to him.

10. The only contrary view can be said to have been taken by the Himachal Pradesh High Court in Balak Ram's case (1977-2 Rent LR 83) (supra). In that case, the main question to be decided was whether the disputed premises were non-residential premises because the character of those premises could be determined not by reference to the actual use to which they were put by the tenant, but by reference to the original purpose for which they were initially let out. In paragraph 5 of the judgment, it has been observed by the learned Judges that this was the moist important question of law involved in that case. However, reply to this question has been given by the Hon'ble Judges in paragraph 15 of the judgment wherein it has been concluded that the character of the suit premises should be determined with reference to the actual user found on the date of eviction petition and that, therefore, the view taken by that Court in Prem Chand v. Beni Madhav, ILR (1975) Him Pra 670, was affirmed. Thus, the main consideration in that case was whether the use of the building at the time of the institution of the ejectment proceedings will determine the character of the building or the original purpose for' which the same was rented out. Since the ejectment in that case was claimed on other grounds as well including that the landlord bona fide required the premises for his own use and occupation, it was held in that case that, the landlord had, according to the findings recorded by the Courts below, proved his bona fide personal requirement of the disputed premises and that being a pure finding of fact, it was not open to that Court to interfere with the same in the exercise of the revisional jurisdiction. In this view of the matter, I am of the considered opinion that the ratio of the said decision is not applicable to the facts of the present case. The language used in S. 13(2)(ii)(b) of the Act is suggestive that while in view of S. 13(2)(ii)(a), the tenant is liable to be ejected if he has sublet the entire building or the rented land or any portion thereof, but under S. 13 (2)(ii)(b) of the Act, he is liable to be ejected if he has used the building or the rented land for a purpose other than that for which it was leased to him. The words, 'any portion thereof' in S. 13(2)(ii)(a) of the Act, do not find any place in S. 13(2)(ii)(b) of the Act and, therefore, the legislature seems to be of the view that in case a tenant is liable to be ejected under Section 13(2)(ii)(b) of the Act, then the entire building, as rented out, or at least a major portion thereof, should have been used for a purpose other than that for which it was leased. In the present case, as held earlier, the dominant purpose of the demised premises, is still the bakery business and only a small portion thereof is being used by the petitioner for his residence. It is also in evidence that the portion which is being used for residence by the petitioner opens in a blind lane. There are no shops on that side. Under the circumstances, the dominant purpose of the demised premises is still the business which is being carried on by the tenant-petitioner. Moreover, there is evidence on the record, that the tenant is 70 years old and is on weak eye-sight. For running the bakery business, the help of his other family members is necessary and, thus, his residence in the premises, in dispute, is also required to run his bakery business satisfactorily.

11. The argument of the learned counsel for the landlord-respondent that the tenant-petitioner by using the demised premises for his residence along with his business, has converted the building from non-residential to residential, because the definition of non-residential building, as given in S. 2(d) of the Act, is a building being used solely for the purpose of business or trade, and has, thus, rendered himself liable to ejectment, has no force, because the ejectment of a tenant can only be sought on the grounds, as given in S. 13 of the Act. the ejectment of the petitioner in the present case is being sought on the ground that he has used the building for a purpose other than that for which it was leased. S. 11 of the Act deals with the conversion of a residential building into a non-residential building and provides that no person shall convert a residential building into a non-residential one except with the permission, in writing, of the Controller. In this section also, the prohibition, if any, is from converting a residential building into a non-residential building, but not vice versa.

12. From the above discussion, it is clear that the landlord-respondent has failed to prove that the tenant-petitioners has used the demised premises for the purpose other than that for which they were leased out to him. Consequently, this revision petition succeeds and is allowed. The order of the Appellate Authority is set aside and the application of the landlord-respondent for the ejectment of the tenant-petitioner is dismissed with costs.

13. Petition allowed.


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