Punjab-Haryana High Court
Chhotey Lal And Ors. vs Rajinder Kumar on 11 August, 2004
Equivalent citations: (2004)138PLR835, 2005 A I H C 87, (2004) 3 PUN LR 835, 2004 HRR 2 575, (2004) 2 RENCR 450, (2005) 1 CIVILCOURTC 192, (2005) 1 RENTLR 26, (2004) 2 RENCJ 485
JUDGMENT M.M. Kumar, J.
1. This order shall dispose of two petitions, namely, Civil Revision No. 702 of 1985 and Civil Revision No. 1288 of 1986. Both the cases have arisen between the same parties. The first petition i.e. Civil Revision No. 702 of 1985 is the result of order of ejectment passed by both the Courts below. The tenant petitioner Chhote Lal (now represented by his LRs) has filed the 1st petition under Section 15(6) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for brevity the Act). In the petition challenge is to concurrent findings of facts recorded by both the Courts below holding that the tenant-petitioner was liable to be evicted from the demised shop which was let out to him for commercial purpose on the ground that he . started using the demised shop for the purpose on the ground that he started using the demised shop for the purpose of his residence as he started living there with nine members of his family. The Rent Controller in his order dated 29.1.1981 has also found merit in the order ground also, which was to the effect that there was change of user by the tenant-petitioner as he converted tailoring business to the dry-cleaning business. However, the Appellate Authority rejected the afore-mentioned grounds in its judgment dated 8.2.1985.
2. In the second case, the Rent Controller has ordered issuance of warrants of pos- session in respect of the demised shop after the tenant-petitioner had committed default in making payment of arrears of rent in accordance with the order passed by this Court on 28.2.1985 in Civil Revision No. 702 of 1985, whereby direction was issued to the tenant-petitioner to pay all the arrears of rent within a fortnight and in future it was to pay/deposit the rent on 10th of every month.
1st Petition.
Before dealing with the contention raised by the learned counsel for the parties, it would be necessary to state few facts. The landlord-respondent filed ejectment petition No. 1872 dated 21.4.1976/80 against tenant-petitioner praying for his ejectment on vari- ous grounds under Section 13 of the Act in the Court of Rent Controller, Faridabad. Af- ter notice, reply and recording of evidence. The Rent Controller gave findings that ten- ant-petitioner had changed the user of the demised shop, inasmuch as it was rented out for tailoring purposes and the tenant-petitioner had started the dry-cleaning business. The Rent Controller further held that the tenant-petitioner had also started using the de- mised shop for the purpose of residence by inducting whole of his family consisting of nine members without the consent of the landlord-respondent. As a result of the afore- mentioned findings, the Rent Controller ordered eviction of the tenant-petitioner.
On an appeal filed by the tenant-petitioner, the Appellate Authority accepted his plea that since there was no rent note executed between the parties, it could not be held that the use of demised shop was confined to tailoring business, alone although the findings of the Rent Controller to the effect that there was change in business were accepted. However, the Appellate Authority accepted the view of the Rent Controller to the effect that the demised shop was rented out only for commercial purpose and the tenant-petitioner had started using the same for the residential purpose as nine members of the family of the tenant-petitioner were living there. On the basis of the findings the tenant- petitioner was ordered to be evicted. The repot of the Local Commissioner, Shri Jagdish Chander, Advocate, Exhibit AW12/1, along with enclosures Exhibits AW12/2 to AW12/12, has been relied upon. The Local Commissioner who visited the demised shop on 2.4.1976 had discovered various articles at the demised shop which would establish that a full fledged house was being run at the back portion. The Local Commissioner had conducted the proceedings in the presence of the parties and their respective counsel. Both the Courts below have also placed reliance on Exhibit A-6 which is a certified copy of Form-D submitted by the tenant-petitioner for obtaining a ration-card, wherein the place of his residence has been given as House No. DE-49 which is the municipal number allotted to the demised shop. The ration card was prepared for nine members, namely, Chhotey Lal, his wife, his son Basant Kumar and son's wife, his daughter Ashok Kumari and three sons and one grand-son.
The landlord-respondent had examined Badri Parsad, Depot Holder, (AW2) who has substantially supported his version. Another piece of evidence relied upon is Exhibit A- 9 to Exhibit A-13, which are voter-lists prepared at the time of assembly elections in 1975 and 1971 respectively. The tenant-petitioner Chhote Lal RW-13 also admitted that Basant Kumar is his son and that the marriage of Ashok Kumari, his daughter, was sol- emnised on 14.1.1974 at the demised shop. The afore-mentioned fact is also evident from the wedding card which shows that the marriage was solemnised in ward No. 6. On the basis of the aforementioned overwhelming evidence on record, both the Courts found that the demised shop was a commercial property and could not be permitted to be used for residential purposes, without the, consent of the landlord-respondent. The conclusion as recorded by the Appellate Authority in paragraph 18 reads as under:-
"Under the circumstances in view of my discussions I am of the opinion that after the shop had been rented out for commercial purposes the respondent started living therein with his family and as such he is liable to be evicted from the same on the ground of change of user."
IInd Petition When the petition came up for admission before this Court on 28.2.1985, it was admitted and ejectment of the tenant petitioner was stayed subject to the condition that the tenant-petitioner shall pay/deposit the arrears of rent within a fortnight i.e. by 15.3.1985. It was also directed that he would keep on depositing/paying the future rent by the 10th of every month. The landlord-respondent filed an execution petition, being case No. 94/10 of 1985 on 5.10.1985, alleging that the order of ejectment passed by the Rent Controller on 19.1.1981 as affirmed by the Appellate Authority on 8.2.1985, had attained finality because the conditional stay order passed by this Court was not complied with. The rent and house-tax for 14 months was deposited on 5.3.1986. Whereas the rent was required to be paid by the 10th of every month. The observation of the Rent Controller in this regard read as under:-
"7. The subsequent payment was to be made by 10th or every month. The rent upto 31.3.1985 had already been deposited vide challan dated 5.3.1986. The rent for April was to be paid by 10.4.1985 rent from 1.4.1985 to 31.3.1986 was admittedly deposited in the treasury. Even rent from 1.4.1986 to 31.3.1986 has also been deposited vide treasury challan dated 7.4,1986. No explanation worth the name for non deposit of rent for April by 10th of the said month in terms of the Hon'ble High Court order has been made. Reference may be made to R.N.Hasija v. Chuni Lal, 1985 H.R.R. 56 (P&H High Court).
8. To my humble opinion the plain and clear direction of the said order is to be taken. The words "It has paid/deposited by 10th of every month" are to be plainly construed. No deposit having been made in the month of April much less by 10th of the said month, there is want of compliance in the above orders of stay which entitled the decree holder to proceed for taking possession of the premises. ¦
9. The conduct of the JD is also to be noted. There were seven interrogatories furnished to the JD but were not replied. Out of the interrogatories, interrogatory No. 5 is very relevant for this purpose and is appended as below:-
"Specify whether the rent subsequently has been deposited each month with house tax as ordered by the High Court? If deposited please specify B.D.Nos of each deposited with dated and place of deposits but the JDA did not answer. In the plea that the main petition is vague arguing this point it has been canvassed that there is no averment in the application of the DH as to how the default has been made by the JD. Though the complete details in the knowledge and possession of the DH has been given in the application, it is to be noted that it was for the JD to satisfy compliance of the order to have continuous operation of the stay of dispossession in his favour.
10. Deposit of even future rent by the JD would not be a circumstance to condone his default.
11. The JD thus having not complied with the order dated 28.2.1985 has done so at his peril. The warrant of possession thus be issued against JD for 2.6.1986."
The aforementioned order was challenged before this Court and this Court admitted the petition on 22.5.1986 and granted stay of dispossession. It was further directed that the petition be heard alongwith the 1st petition i.e. Civil Revision No. 702 of 1985.
3. Shri S.V.Rathee, learned counsel for the tenant-petitioner has argued that only a small portion of the demised shop has been converted into residence and that by itself would not result into violation of Section 13(2)(ii)(b) of the Act. According to the learned counsel, the tenant-petitioner is still running his dry-cleaning business and, therefore, it could not be said thai the demised shop has been converted into residence. The learned counsel has maintained that dominant use of the demised shop is still com-mercial. In support of his submission, the learned counsel has placed reliance on a judgment of the Supreme Court in Sant Ram v. Rajinder Lal and Ors., A.I.R. 1978 Supreme Court 1601. He has also placed reliance on two judgments of this Court in the cases of Dharam Chand v. Mathura Dass, A.I.R. 1982 Punjab and Haryana 224 and Amar Nath v. Ramesh Kumar, (P&H), (1993-3)105 P.L.R. 252. The learned counsel has emphasised that merely because one portion has been used for residential purposes would not result into a valid conclusion that there is change of user from commercial to residential. However, the learned counsel has not made any submission, with regard to the second petition, namely, Civil Revision No. 1288 of 1986.
4. Shri Adarsh Jain, learned counsel for the landlord-respondent has argued that once there is change of user and a commercial property has been put to a use as a residential then the ejectment has to be ordered in view of the provisions of Section 13(2)(ii)(b) of the Act. He has drawn my attention to paras 14 to 18 of the judgment of the Appellate Authority to argue that there is overwhelming evidence on record to show that the tenant-petitioner has started using the premises as his residence and is running a dry-cleaning shop also in the name and style of "R.K.Dyers and Dry-Cleaner". In support of his submission, the learned counsel has placed reliance on a Division Bench Judgment of this Court in the case of Mukhtiar Singh v. Satwant, 1986(2) R.C.R. 38. The learned counsel has also made a faint attempt to challenge the findings of the Appellate Authority that the change of user from the tailoring business to dry cleaning is also covered by Section 13(2)(ii)(b) of the Act or by other provision providing for ejectment on the ground of impairment of the value. The learned counsel then drew my attention to the statements made by AW-13 the landlord, AW-10 Arjun Singh and AW2 Badri Parshad and argued that the statements of these persons would show that the dry-cleaning shop is still being run in the demised shop.
5. After hearing learned counsel for the parties and perusing the record, I am of the considered view that the findings recorded by both the Courts below do not leave any room for a doubt that the dominant purpose for which the demised shop has been used by the tenant-petitioner is the residential one. There is no requirement of law as envisaged by Section 13(2)(ii)(b) of the Act that the whole premises should be put to a changed use. In- other words, if a tenanted premises has been partially put to a changed use, even then the ejectment of the tenant could be ordered. It is well settled that a landlord could rent out a building for residential business or manufacturing purposes and if the tenant continues to maintain the dominant purpose for which the building was let out, then he himself becomes liable to be evicted, but if the dominant use of the building is changed then the tenant would be liable to be evicted. The afore-mentioned principle has been laid down by the Supreme Court in the cases of Bharat Lal Baranwal v. Virender Kumar Agarwal, (2003)2 S.C.C. 343. The view of their Lordships is evident from paras 12 and 13 of the judgment which reads as under;
"Broadly speaking, a building can be let out for three purposes; 1. Residential
2. Business
3. Manufacturing.
If the dominant purpose for which a building is let out is maintained, a tenant may not become liable to be evicted. But if the building is let out for residential or business purposes and the tenant starts manufacturing activity or vice versa, then it would amount to change of user subject to the provisions of the Act in reference."
6. Similar view has been expressed in the cases of Guljar Singh Grewal v. Harbans Singh, (1993-1)103 P.L.R. 410(S.C.) Bishamber Dass Kohli v. Satya Bhalla, (1993-3)105 P.L.R. 402 (S.C.).
7. From the perusal of the principles laid down by the Supreme Court in the afore- mentioned judgments, it is evident that if a building is let out for residential purpose and its use is changed to business or vice-versa, then the tenant-petitioner becomes liable to be evicted. In the present case, the demised shop was rented out for a commercial purpose and it has been established on record that the same is being used for residential purpose, inasmuch as nine members of the family are residing in the demised shop with- out the consent of the landlord. Even the marriage of the daughter of the tenant petitioner was solemnised at the address of the demised shop. There is an overwhelming evidence on record to prove these fuels. The dominant purpose to which the building has been put is the' residential and not the commercial. Therefore, the tenant-petitioner is liable to be evicted.
8. It is true that putting a small portion of the commercial tenanted building to a residential purpose may not amount to change of user, as has been held by the Supreme Court in the cases of Kisan Day ami Mono v. Vithal Vishnu Mohandalo, 1990 Supp. S.C.C. 654; Dipak Benerjee v. Lilabati Chakraborty, A.I.R. 1987 S.C. 2055 and Atul Castings Ltd v. Bawa Gurvachan Singh, (2001)5 S.C.C. 133, but this is a question of fact to be determined on appreciation of evidence by the Courts below as has been held by the Supreme Court in Gulraj Singh Grewal 's case (supra). This Court while exercising powers of revision under Section 15(6) of the Act would not endeavour to reappraise the evidence to come to a conclusion different than the one recorded by both the Courts below merely because it feels that another view is possible. This principle is also well settled by a catena of judgments in the cases of Gurbachan Singh v. Salibi, 1995 Supp(4) S.C.C. 438, Lekh Raj v. Muni LalP (2001-2)128 P.L.R. 426 (S.C), Rajbir Kaur v. S. Chokosiri and Co., (1989)1 S.C.C. 19 and Shiv Lal v. Sat Parkash, 1993 Supp(2) S.C.C. 345. The statements made by the landlord-respondent AW-13, Arjan Singh AW-10 and Badri Parshad AW-2 do not warrant the conclusion that only one view as projected by the learned counsel for tenant was a possible view. Therefore, the submissions made by the learned counsel for the tenant-petitioner do not merit acceptance and the same are hereby rejected.
9. The other submissions based on the judgment of the Supreme Court in Sant Ram's case (supra) as followed by this Court in the case of Dharam Chand's case (supra), and another judgment of this Court in Amar Nath's case (supra) would also not re- quire any detailed consideration because in Sant Ram's case the findings recorded were that the lease deed did not disclose the purpose for which the disputed premises was to be put and secondly, the tenant alone used to stay and cook his food at night irregularly on some days. That was not a case where the tenant has permanently put the property to a residential house by bringing nine members of his family to stay in the commercial premises. Similarly in the Dharam Chand's case (supra) the finding was that the major portion of the building was being used for the purposes of business and the tenant was not liable to be evicted. Similar is the position with regard to the judgment in Amar Nath 's case (supra) where out of four rooms of the shop, the tenant was using one room for his residence and it was held that the dominant purpose of the shop was retained as commercial and, therefore, the provisions of Section 13(2)(ii)(b) of the Act was not held to be applicable. It is, thus, obvious that the tenant-petitioner cannot derive any benefit from the aforementioned judgments of the Supreme Court as well as of this Court.
10. Once it is held that there is change of user then the next question which would arise for consideration is whethei the tenant-petitioner has violated the interim order passed by this Court on 28.2.1985. The finding given by the Rent Controller is that the tenant-petitioner had committed a lapse although he has paid the rent subsequently. As no submission has been made on the above-mentioned issue, the finding recorded by the Rent Controller with regard to violation of interim order of this Court dated 28.2.1985, has to be accepted therefore, the tenant-petitioner is liable to be evicted on the afore- mentioned grounds also.
11. For the reasons stated above, these petitions fail and both the petitions are dismissed. The tenant-petitioner shall hand over vacant possession of the demised shop to the landlord-respondent within a period of three months from today.