Punjab-Haryana High Court
Jagdish Chand vs Surinder Kumar on 18 September, 2004
Equivalent citations: (2005)139PLR509, AIR 2005 PUNJAB AND HARYANA 275, 2005 A I H C 837, 2005 HRR 1 110, (2005) 3 LANDLR 207, (2005) 1 PUN LR 509, (2004) 2 RENCR 647, (2005) 1 RENTLR 253, (2005) 1 RECCIVR 1
JUDGMENT M.M. Kumar, J.
1. This petition filed by the landlord under Section 15(5) of the East Punjab Urban Rent Restrict Act, 1949 (for brevity, 'the Act') challenges concurrent findings of facts recorded by both the Courts below holding that the tenant-respondent has not indulged in change of use of the demised shop as envisaged by Section 13(2)(ii)(b) of the Act. Both the Courts have found that the change of business from cloth merchant to sale of note - books and stationery items etc. would not amount to change of user within the meaning of Section 13(2)(ii)(b) of the Act especially when the rent note describing the purpose of letting out the demised shop has not been held admissible in evidence for want of registration.
2. The controversy although is legal, yet few facts are necessary for focusing the issue raised. The landlord-petitioner filed an ejectment petition being File No. 19 dated 10.3.1998 claiming that the tenant-respondent took the demised shop on rent from him for setting up his cloth business on a yearly rent of Rs. 16,000/- along with house tax besides other charges for a period of one year. A rent note was also executed by the tenant-respondent in favour of the landlord-petitioner. The ejectment was sought inter alia on the ground that the shop was originally taken on rent by the tenant-respondent for setting up the cloth business and he has started manufacturing note-books by installing heavy machinery in the demised shop under the name and style of 'Sumit Copy Manufacturers'. The stand taken by the tenant-respondent in his reply was that he never agreed for payment of house tax over and above the rent at the rate of Rs. 16,000/- per year. He also denied that the demised shop was hired only for cloth business by further asserting that it was hired for running business. It was claimed that the respondent has started stationery business three years prior to the filing of the petition and no machin- ery for manufacturing the note-books has been installed. He has explained that the machinery has been installed for manufacturing the note-books at his residence. The execution of the rent note has also been denied asserting that the landlord-petitioner had obtained the signatures of the tenant-respondent on blank papers and has fabricated the same.
3. The learned Rent Controller held that although by virtue of Section 17(1) of the Registration Act, 1908 (for brevity, '1908 Act') read with Section 107 of the Transfer of Property Act, 1882 (for brevity, '1882 Act'), a lease deed on year to year basis is compulsorily registerable, yet the rent note Mark 'A-2' could be read for a collateral purpose. According to Clause 6 of the rent note Mark 'A-2', the demised shop is to be used for the business of cloth. The Rent Controller has found that the use of the demised shop has not been confined to cloth merchant alone by the use of word 'only' and, therefore, switching to the sale of stationery items was not change of user warranting ejectment of the tenant-respondent.
4. The Appellate Authority, however, found that the non-registration of rent note Mark 'A-2' would disqualify the document being read in evidence. Referring to Section 17 of 1908 Act and Section 107 of 1882 Act, the Appellate Authority has held as under:-
".....I have gone through the rent deed dated 14.4.1985 which was to be effected from 15.4.1985. It bears the signature of Jagdish Chand and Surinder Kumar. In para No. 2 it is scribed that the shop is rented out for one year and in para No. 6 there is written that he will do the business of cloth. So, bare language of para No. 6 indicates that the respondent will run the business of cloth but he has not been debarred from running any other business. Section 17 of the Registration Act deals with the documents which are to be registered. Sub-section (1) of Section 17 deals with lease or immovable property and reads that "lease of immovable property from year to year or if any term exceeding one year or reserving a yearly rent are to be registered".
Under the Transfer of Property Act Section 107 reads as under:
"A lease of immovable property from year to year for any term exceeding one year or reserving of yearly rent can be made only by a registered document".
So from the bare language of both sections when rent deed is for a year or more then that is compulsory registerable. In the case in hand the alleged rent deed Ex. A-2 is for a year and which was to be commenced from 15.4.1985 but the same was not got registered. The trial Court has rightly held that it cannot be read into evidence as it requires registration."
5. The Appellate Authority also examined in detail the whole evidence with regard to change of user. It also referred to the judgments of the Supreme Court in the case of Gurdial Batra v. Raj Kumar Jain, (1989-2)96 P.L.R. 313 (S.C.) and Mohan Lal v. Jai Bhagwan, (1988-3)93 P.L.R. 670 (S.C.) and concluded as unden:-
"......In the case in hand the shop was not rented out only for the purpose of cloth business. The Id. counsel for the appellant has admitted that the word only is not recorded in para No. 6 of the alleged rent deed mark A-2. Moreover, the lease deed is not proved on the file and no importance can be given to mark A-2 and it can be considered only for the collateral purpose, and it is in the evidence that the respondent changed the business in the year 1991-92 but the eviction application was filed in the year 1995. The arguments of the Id. counsel for the respondent is forceful that the applicant has not objected his business of selling the copies for 3-4 years but he has filed eviction application just for the reason that the rent has increased many folds and I do not agree with the arguments advanced by the Id. counsel for the appellant as the counsel for the appellant has argued, that the letting out purpose of the shop in dispute was run the business of cloth only. In the light of authority relied upon by the counsel for the respondent, I am the view that there is no change of user. The change of user only where the change of user which impairs the value of the rented premises and interest of the landlord is prejudiced. The findings of the trial Court are well reasoned and well based and it requires no interference and the same is hereby confirmed."
6. Mr. P.C.Chaudhary, learned counsel for the landlord-petitioner has argued that the rent note Mark 'A-2' can be read into evidence for a collateral purpose, namely, the purpose of user of the demised shop. According to the learned counsel deviation from the purpose for which the demised shop was let out would result into ejectment of the tenant. He has drawn my attention to the express words of Section 13(2)(ii) (b) of the Act and argued that if the tenant without the written consent of the landlord has used the demised building for a purpose other than that for which it was leased, then the tenant is liable to be evicted. In support of his submission, the learned counsel has placed reliance on a judgment of the Supreme Court in the case of Jagdish Lal v. Parma Nand, (2000-2)125 P.L.R. 512 (S.C.).
7. After hearing the learned counsel, I am of the considered view that this petition does not warrant admission. It is well settled that a lease deed executed for month to month tenancy or for a period of 11 months, though reduced to writing may not require compulsory registration even if possession of tenanted premises might have been delivered to the tenant. For the aforementioned proposition, reliance could be placed on a judgment of the Supreme Court in the case of Satish Kumar v. Zarif Ahmed and Ors., 1997(3) S.C.C. 679. However, it is not true in cases where the lease deed is executed for year to year tenancy because it is equally well settled that such a lease-deed would require registration as envisaged by Section 17 of the 1908 Act read with Section 107 of 1882 Act. For the aforementioned proposition, reliance could be placed on three judgments of the Supreme Court in the cases of Rajendra Pratap Singh v. Rameshwar Prasad, 1998(7) S.C.C. 602; Budh Ram v. Ralla Ram, 1987(4) S.C.C. 75 and Anthony v. K.C. Ittoop & Sons, 2000(6) S.C.C. 394. In the present case, the lease was admittedly for a period of one year and, therefore, it would require registration for becoming admissible in evidence. Therefore, there is no legal infirmity in the view taken by the learned Appellate Authority warranting interference of this Court.
8. The findings on the change of user are that there is no machinery installed in the demised shop. The tenant-respondent has, however, started selling stationery items like note-books etc. instead of cloth. Even when the benefit of the judgments of the Supreme Court in Rana Vidya Bhushan Singh v. Rati Ram, 1969 Unreported Judgments (S.C.) 86 and Rai Chand Jain v. Miss Chandra Kanta Khosla, 1991(1) S.C.C. 422 is granted to the landlord-petitioner of reading the lease-deed for a collateral purpose under Section 49 of 1908 Act, still the change of user from cloth merchant to stationery merchant would not be such a change of user as to require any written consent of the landlord-petitioner. The nature of the user of premises continues to be the same and instead of cloth, the tenant-respondent has started selling the stationery items. In the present time of fast changing world, switching over from one business to another without harming the nature of use of the premises has to be considered permissible without being hit by the mischief of Section 13(2)(ii)(b) of the Act. In Gurdial Batra's case (supra) it has been observed by the Supreme Court that some prejudice must be shown to have been caused to the interest of the landlord which is the rationale of Section 13(2)(ii)(b) of the Act. The observations of their Lordships in this regard read as under: -
"The restriction which is statutorily provided in Section 13(2)(ii)(b) of the Act is obviously one to protect the interest of the landlord and is intended to restrict the use of the landlord's premises taken by the tenant under lease. It is akin to the provision contained in Section 108 of the Transfer of Property Act dealing with the obligations of a lessee. A house let for residential purpose would not be available for being used as a shop even without structural alteration. The concept of injury to the premises which forms the foundation of clause (b) is the main basis for providing clause (b) of Section 13(2)(ii) as a ground for the tenant's eviction. The landlord parts with possession of the premises by giving a lease of the property to the tenant for consideration. Ordinarily, as long as the interest of the landlord is not prejudiced, a small change in the user would not be actionable. In this case, the premises was let out for running of a repair shop. Along with the repair business, sale of television was temporarily carried on. This did not constitute a change of user within the meaning of Section 13(2)(ii)(b) so as to give a cause of action to the 'landlord to seek eviction of the tenant."
9. In the case of Atul Castings Ltd. v. Bawa Gurvachan Singh, 2001(5) S.C.C. 133; the Supreme Court has followed the principles of liberal interpretation of Section 13(2)(ii)(b) which should advance the purpose of the provision. Following the view taken in Gurdial Bata's case (supra), their Lordships observed as under:-
"The interpretation of provisions must be purposive and not unduly restrictive or narrow. If Section 13(2)(ii)(b) is interpreted in a restricted and narrow manner, it will be difficult for any tenant occupying a residential building to protect himself from arbitrary eviction and even to have freedom to use the building for residential purpose as he wants. Such interpretation will defeat the intent and purpose of the statute."
10. When the principles laid down in Gurdial Batra's case (supra) and Atul Castings Ltd. 's case (supra) are applied to the facts of the present case, then it becomes evident that no prejudice is caused to the interest of the landlord-petitioner because some wooden shelves could be used for stocking the cloth where the tenant-respondent might have stocked the stationery items. Such a liberal approach would advance the object of the provision. It was because of such an approach that in Gurdial Batra's case (supra), sale of television along with the cycles and rickshaw repair, when the rent note did not prohibit any other business was considered as permissible. Therefore, there is no scope for interfering with the concurrent findings of facts recorded by both the Courts below.
11. In the case of Jagdish Lal (supra) on which reliance has been placed by learned counsel for the landlord-petitioner, it has been observed that if a new business started by the tenant in the premises let out to him was allied business or a business which was ancillary to the main business, then it would not amount to change of user. It has further been observed that it is not enough for the tenant to argue that nature of the building has continued to be commercial no matter to which changed use it has been put. In that case, the change was from general merchant, ready-made and cloth merchant to the setting up of a restaurant for serving tea and cold-drinks and it was found in those circumstances that it would be covered by the mischief of Section 13(2)(ii)(b) of the Act. It is evident that there was prejudice caused to the landlord because making tea, serving the same would result into activities which are harmful to the tenanted premises resulting in prejudice to the interest of the landlord. However, in the present case, the change of user is from cloth merchant to stationery. Therefore, it cannot be said that there is such a drastic change in the nature of business so as to conclude that prejudice is caused to the landlord-petitioner the tenant-respondent is to be ejected.
12. In view of me above, the instant petition does not warrant admission and the same is dismissed.