Punjab-Haryana High Court
Shri Bakshish Singh Nalwa And Anr. vs Shri Harnam Singh, Property Dealer on 22 January, 1993
Equivalent citations: (1993)103PLR576
Author: Ashok Bhan
Bench: Ashok Bhan
JUDGMENT Ashok Bhan, J.
1. Petitioner (hereinafter referred to as the landlord) has filed the present revision petition Shortly stated the facts are that the landlord claims himself to be the owner of House No. 115, Sector 16-A, Chandigarh; that the upper portion of this house was leased out to Harnam Singh-respondent on a monthly rent of Rs. 600/- excluding water and electricity charges Ejectment was sought inter-alia on the ground that the premises in dispute were being used for the purpose other than residential purpose for which the premises were let : that the tenant had set up commercial activity under the name and style of 'sacha sauda' a property dealer's business as well as for storage and sale of Broilers: that in Chandigarh, such like activities could lead to the resumption of the plot on which the house had been constructed ; that the landlord issued a notice on July 18, 1978 terminating the tenancy of Harnam Singh respondent (hereinafter referred to as the tenant) Other grounds for eviction which had been taken by the petitioner in his ejectment petition are not being mentioned here because the same were given up before Rent Controller and, therefore, no arguments have been advanced either before the Rent Controller or the Appellate Authority.
2. Ejectment application was contested by the tenant. Relationship of landlord and tenant was admitted. It was, however denied that there was a change of user or purpose for which the premises were let out ; that the premises in dispute were being used for residence ; that he was selling Broilers near Mohali bridge being camp office at Kasauli as well as in shop in Sector 8, Chandigarh It was further mentioned that the petition had been filed in order' to raise the rent and it was known to the landlord that the tenant pas a property dealer.
3. On the pleadings of the parties, following issues were framed -
1. Whether the respondent has changed the user of premises from residential to commercial ? OPA.
2. Whether the acts and conduct of the respondent are nuisance to the occupiers of the building in neighbourhood, if so its effect ? OPA
3. Whether the petition is not maintainable ? OPR.
4. Relief.
4. Rent Controller under Issue No 1 held that the tenant while doing business of property dealer in the house, did not change the user of the premises however since the tenant had started storing and selling Broilers, the tenant had changed the user and was there-fore, liable to be evicted from the premises in dispute Issues No. 2 and 3 were given up, therefore, no finding was recorded on these issues by the Rent Controller. Ejectment of the tenant was ordered and he was given 60 day's time to vacate the premises in dispute Aggrieved against the said order of ejectment, the tenant filed an appeal before the Appellate Authority, which after perusal of the evidence, came to the conclusion that only a small portion of the tenancy premises was being used for commercial activity i. e. for storing and selling of the broilers which did not change the character of the building from a residential to a non-residential. Further more, the same would not be a ground to order ejectment of the tenant. In order to come to this conclusion, Appellate Authority relied upon Division Bench judgment of this Court reported as Telu Ram v. Om Parkash Garg, (1971) 73 P. L.R 1, Bhabutmal Raichand Deva v. Laxmi Rai R. Tarta, 1975 Rent Cases 124 and Sant Ram v. Rajinder Lal, (1979) 81 P. L. R. 60 (S. C.), wherein it was held that where a small portion of the building is used for a purpose other than the one for which it was originally let, that, by itself, may not render the tenant liable to be evicted under section 13(2)(ii) (a) and (b) of the East Punjab Urban Rent Restriction Act, especially when there was no change in the character of the building from a residential to a non-residential. The Appellate Authority came to the conclusion that the tenant had been storing and selling broilers in the pantry of the first floor of the house in dispute, the size of which was 10' x 8' in which refrigerator and another freezer have been placed for storing the broilers. There were four living rooms, kitchen etc. which are part of the premises in dispute. From this, it was concluded that only a small portion of the premises in dispute was being used for commercial purposes i.e. for selling of broilers without changing the basic character of the building from a residential to a non-residential.
5. There was no appearance on behalf of the tenant-respondent in this Court.
6. I have heard the learned counsel for the petitioner and find myself in agreement with the findings recorded by the Appellate Authority.
7. It is true that the tenant was carrying on commercial activity in a small portion of the residential building. Judgments of this Court and that of the Supreme Court on which reliance was placed by the Appellate Authority, clearly indicates the if a small portion of a building is used for a purpose other than the one for which it was originally let without changing the character of the building from residential to non residential, then the tenant cannot be ordered to be evicted. The counsel for the petitioner failed to show any authority to the contrary Reliance was placed upon an unreported judgment of this Court as Civil Revision No. 1470 of 1989. Major Ram Singh v. Saint Soldiers, (1993-1) 103 P. L. R. 114, etc. decided on September 18, 1992, in which it was held that the tenant had taken the building for residential purposes and had changed the user of the premises by running a School in it which rendered him liable to be ejected on the ground of change of user. The point in issue which has been raised in the present case has not been dealt with in Major Ram Singh's case. The point has directly been considered and adjudicated upon by this Court in Sagar Mal alias S. M. Aggarwal v. Shree Seeta Ram, 1980 (1) R. L. R. 33, in which also, after referring to the decision of the Supreme Court in Sant Ram's case (supra), it was observed as under :-
"If a small portion of a building taken on lease for residential purpose is used for business or vice versa, the nature of the building is not changed. Thus, each case has to be decided after taking into consideration the facts and circumstances of the case."
In Telu Ram's case (supra), the Division Bench of this Court had also taken the same view. That being the position of law, I find no merit in this revision petition and the same is dismissed with no order as to costs.