1. This revision petition has been filed on behalf of tenants against whom order of ejectment from the shop in dispute has been passed by both the authorities below. It is the common case of the parties that the tenancy in favour of the petitioners In respect of the demised premises was created vide lease deed dated 24th April, 1967, certified copy of which is Ext. A-1, The present application for ejectment was filed on 12th Dec., 1969, inter alia on the grounds that the tenants. without written consent of the landlord, used the building for the purpose other than that for which it was leased; that they were keeping the building closed and have committed such acts as were likely to impair the value and utility thereof. The ejectment application was contested on behalf of the tenants-petitioners on the ground that the premises were let for business purposes and the same is being carried on therein. The other allegations were also denied. The Rent Controller, under Issue No. 2. came to the conclusion that the tenants have converted the shop into a godown and have thus rendered themselves liable for ejectment. The other issue as to whether the tenants have kept the premises closed for about a year prior to the institution of the ejectment application as alleged, was also found In favour of the landlord. As a result of these two findings, eviction order was passed against the tenants-petitioners. In appeal. the learned appellate authority affirmed the finding of the Rent Controller as to the change of user of the premises in dispute from the shop to a godown, but reversed the finding of the trial Court an the other issue. Ultimately the order of the Rent Controller passed in favour of the landlord was maintained. Dissatisfied with the same, the tenants have come up in revision In this Court.
2. The only question to be determined in this petition in whether the tenants are liable to ejectment on the ground that they have changed the use of the premises for the purposes it was rented out, vide lease deed dated 24th April, 1967. Ext. A-1. It may be stated at the outset that the Rent Controller gave the finding to the effect that 'admittedly the respondents (tenants) have constructed their own shop in the same Bazar and their main business is carried out in that shop. Jugal Kishore respondent himself stated that as compared to the disputed building more business is carried out by them in their own shop. Moreover. the telephone connection was also got shifted from the disputed shop by the respondents to their own shop in Dec., 67, as is clear from the statement of Vijay Kumar Bakshi. A, W. 7. Clerk in the office of the SDO (Telephone), The consumption of electricity also stopped almost as is clear from the statement of Jagdamba Parshad, Meter Reader, A. W. 8.' All this evidence was not challenged before the Appellate Court. It has been observed in para 15 of the judgment of the Appellate Court that, 'it would be appropriate to place on re-cord that no attempt whatsoever was made by the learned counsel for the appellants to assail the finding of the learned Rent Controller insofar as the change of user of the premises from running a shop proper to that of a godown, was concerned and rightly because there was, ample oral as well as telling circumstantial evidence including in the form of inspection note dt. 16-1-1976 of District Rent Controller and the non-consumption of electricity, shifting of telephone connection from the demised premises; and their own shop having been built by the appellants for carrying on that very business in the same locality, which unmistakably pointed to an inference that the demised premises have been in use 'godown' since before the filing of the ejectment petition in the year 1969. The learned Rent Controller hap made an elaborate discussion with regard to the evidence on record on that fact In issue and I see absolutely no reason to differ with that. The only question that falls for determination is whether the change of user from shop to godown rendered the ten-tints liable for ejectment.'
3. The learned counsel for the petitioners tried to assail the said findings of the two authorities below and contended that they did challenge the findings of the Rent Controller before the appellate authority. However, in view of the said observations made by the appellate authority, the petitioners cannot be allowed to assail the concurrent findings of the two authorities below in this revision petition.
4. It was next contended by Mr. Anand Swaroop, Sr. Advocate, 1earned counsel for the petitioners that the Full Bench judgment reported as Des Raj v. Sham Lal, AIR 1980 Punj and Har 229, relied upon by the appellate authority, is not applicable to the facts of the present case and is clearly distinguishable. According to the learned counsel, in the present case, in the lease deed, Ext. A-1, the purpose for which the premises were let out, is given and according to the recital in the lease deed, it was for running the business of 'Kesera i.e. utensils. According to the learned counsel, the said business will also include the godowns for that purpose and therefore, under the circumstances, it could not be held that the tenants have changed the user of the premises, even if it is being used as a godown. According to the learned counsel. in the present case, the premises though has been mentioned as a shop in the beginning of the lease deed, but at the same time the purpose has also been recited therein. It was further contended that It could not be said that in case the premises were to be used as godown to start with, the same could not have been let out by the landlord.
5. After hearing the learned counsel for the parties, I am of the considered view that the ratio of the Full Bench judgment referred. to above, is fully applicable to the facts of the present case. Para 14 thereof is relevant for this purpose which is reproduced as below:--
'This hypothetical discussion is meant to emphasise that where a demised 'building' is identified merely as 'shop', then the same can be used only as a. 'shop' although various kinds of trade could be carried on therein, but if the said demised 'building' same to be used later on exclusively as 'residential building, then that would tantamount to the change of user. Similarly, if such a demised 'building' was put to use exclusively as 'godown' (for the moment assuming that the expression 'godown' connotes a 'building' that is used for the purposes of only stocking provisions therein), then that would tantamount to the change of user. The reason being that when the demised 'building' is used as a 'shop', it is being put to constant use by the lessee which by implication, ensures its proper unkeep like timely repair, timely white-washing etc. but when a building is used as a 'godown', which is merely used for dumping goods therein, such an upkeep may neither be possible nor, by implication, envisaged as such. A 'godown' remains mostly closed, while a 'shop' remains mostly open. The premises used as a 'godown' are bound to deteriorate and a landlord, if he had been informed at the time of entering into the lease transaction that the lessee intended to use the demised premises described as 'shop' he might not have agreed to enter into the said lease transaction Hence. when the demised premises ate used for a purpose to which having regard to its description as 'shop' 'house' etc. the landlord may not have intended, had the said different purpose, which the lessee had in mind, been made known by the lessee to him, then the landlord may not have agreed to lease the said building for that purpose (see in this connection Telu Ram v, Om Parkash Garg, 1971-73 Pun LR 1). Hence putting to use the demised premises to a purpose, which the given description or identification of the demised building in the rent-note did not warrant, would tantamount to the change of user.
6. It could not successfully be argued that merely because in the lease deed. Ext. A-1, the purpose given is the running of the business of 'utensils' it would include that the premises could also beused as godown because it has been, found as a fact that the main business is being run by the tenants in another premises owned by them which were constructed before the shop in dispute was taken on rent. Not only that, the matter may have been different in case the main business was being run in the present premises and along with that some part of it was also being used an godown. Having closed the day-to-day, ale transactions from the premises in dispute and using it solely for the purpose of godown, is certainly a change of user even on the terms of the lease deed, Ext. A-1. As per the terms of the lease deed, it was given for the purpose of, business of utensils which means day-to-day sale transactions and not for dumping utensils in the godown which is now being done by the tenants. The contention an behalf of the petitioners that whether the premises are used as godown or as a shop as such, does not make any difference as there is no deterioration of the premises as such. has also no substance. Once it is found that there is Change of user, in that situation the landlord is entitled to eject the tenant.
7. It will be relevant to mention here that the tenants have constructed their own shop and do their entire business therein and therefore, in these circumstances it could not he urged on their behalf that they were entitled to use the rented premises as a godown. In the judgment of this Court in Chhaju Ram v. Tulsi Das (1977) 79 Pun LR 259. (AIR 1977 NOC 222) (Punj and Har) the meaning of the terms 'shop' and 'godown' was considered and it was held that the shop does not mean or include a godown and the conversion of shop into godown without the consent of the landlord amounts to a change of user. This was approved In the Full Bench judgment (supra).
8. For the reasons recorded above, this petition fails and is dismissed with costs. However, the tenants-petitioned are allowed one month's time to vacate the premises provided all the arrears of rent up-to-date and the advance rent for one month is deposited with the Rent Controller within ten days from today.
9. Petition dismissed.