Punjab-Haryana High Court
Sh. Ram Parshad (Died) vs Ved Parkash on 27 February, 1996
Equivalent citations: (1996)113PLR363, 1996 A I H C 3647, 1996 HRR 284, (1996) 113 PUN LR 363, (1996) 1 RENCR 384, (1996) 1 RENTLR 655, (1997) 1 CURLJ(CCR) 661
JUDGMENT Jawahar Lal Gupta, J.
1. The respondent-landlord filed a petition Under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973. It was dismissed by the Rent Controller. He filed an appeal. The appellate authority accepted his claim and held that the tenants were liable to be evicted on the grounds of change of user and making of alterations which materially affected the value and utility of the premises. It however, rejected the plea of the respondent-landlord that respondent-Ram Parshad had sublet the premises to his son, Mehar Chand. In view of the findings as noticed above, it accepted the claim of the landlord and passed an order of eviction. Aggrieved by this order, the petitioners have approached this Court through the present revision petition. Since Ram Parshad had died during the pendency of the revision petition, his legal representatives were impleaded as petitioners.
2. Mr. M.L. Sarin, learned counsel for the petitioners has made the following submissions :-
i) The finding of the Rent Controller that the shop was on rent with the firm and not with an individual, having not been challenged by the landlord and all the members of the firm having not been impleaded as parties, the order passed by the appellate authority cannot be sustained.
ii) The learned lower appellate court has erred in holding that the petitioners were liable to be evicted on account of change of user or alterations alleged to have been made in the premises.
3. The claim made on behalf of the petitioners has been controverted by the learned counsel for the respondent-landlord.
Reg.(i)
4. The plea raised on behalf of the landlord was that the shop in dispute was originally let out to Shri Mohan Lal "expressly for the business of Bharbhuja" (roasted grams and other foodgrains). After his death, his real brother Ram Parshad succeeded him and occupied the premises as a tenant and continued his business of Bharbhuja but subsequently, he changed the user and sub-let the premises to his son Mehar Chand without the written statement consent or permission of the landlord. In the written statement filed on behalf of the petitioners, it was pleaded that the shop had been taken on rent by "both Mohan Lal and Ram Parshad in the name of Joint Hindu Family firm namely Mohan Lal Ram Parshad and said name continued even after demise of Shri Mohan Lal who died in or about the year 1961 ......... the name of the firm as changed to Ram Parshad Mehar Chand and the previous landlord accepted the changed name of firm and received rent......It is wrong that shop was taken for conducting the business of Bharbhuja but was taken for conducting the business of selling grains". The tenancy was of the firm Mohan Lal Ram Parshad a Joint Hindu Family constituting all the main members of the family including Mehar Chand. It was further stated that the shop was "taken by Mohan Lal Ram Parshad for conducting the business of grain merchant, roasted and unroasted." The respondent-landlord filed a replication controverting the claim made on behalf of the tenant.
5. It deserves mention that according to the respondent-landlord, the shop had been let out to Mohan Lal. On his death, his real brother, Ram Parshad had become a tenant. He had, however, sub-let the premises to his son, Mehar Chand without the written consent of the landlord. As a result, it was pleaded that the respondent-petitioners were liable to be evicted on the ground of sub-letting. This plea having been rejected by the learned Rent Controller, the respondent filed an appeal which was accepted by the appellate authority on the two grounds of change in user and unauthorised alterations. The plea of sub-letting has not been accepted. In this situation it cannot be said that the respondent-landlord had accepted the finding of the learned Rent Controller that the shop had been let out to the firm.
6. Furthermore, a perusal of the written statement shows that the petitioners had nowhere pleaded as to who were the partners of the firm or that necessary parties had not been impleaded. Still further, a perusal of the statement of RW-1 Ram Parshad who was respondent No. 1 in the case shows that only he and his son Mehar Chand had a share in the business being run in the demised premises. Duli Chand, the other son was working in a post office. There is no evidence to indicate as to who were the other partners, if at all any. In this situation, it cannot be said that the landlord had failed to implead any necessary party or that he had accepted the findings of the Rent Controller which may have estopped him from filing the appeal. Consequently, the first contention is rejected.
Reg. (ii)
7. Mr. Sarin then contended that there was no change in the user of the premises. The shop had been let out for the purpose of selling grains. The petitioners were selling roasted and unroasted grains. Even if, it is assumed that they had stopped selling roasted grains, it cannot be said that the change of user has caused any damage to the property.
8. A perusal of Section 13 shows that a tenant in possession of a building, can be evicted therefrom if it is found that he has "used the building...for a purpose other than that for which it was leased." On a perusal of the evidence, the learned lower appellate court has recorded a categorical finding that the shop had been let out for the purpose of selling roasted grains. It has been further found that in 1973, the petitioners had taken a licence for dealing in foodgrains. They had, thereafter, started dealing in the sale of foodgrains as distinguished from roasting and selling parched gram etc. The view taken by the learned appellate authority is in consonance with the evidence on record. It has not been pointed out that the findings are not in conformity with the evidence. In fact, even the statement of Prabhu Dayal, RW-7 clearly supports the plea raised on behalf of the landlord. The finding recorded by the appellate authority calls for no interference.
9. Mr. Sarin, however, submitted that the change is user of the property did not impair its value and thus gave no cause of action to the landlord. He relied on the decision in Mohan Lal v. Jai Bhagwan, (1988-1)93 P.L.R. 670 (S.C.), to contend that unless the change in user impaired the value of the property, no ground for eviction of the tenant would be made out. On the other hand, Mr. Ajay Mittal, learned counsel for the respondent-landlord submitted that change of user without the written consent of the landlord furnishes a ground for eviction of the tenant. The statute does not require that the value of the property should be impaired. He referred to the decision in Dashrath Baburao Sangale and Ors. v. Kashinath Bhaskar Data, JT 1991 (Supplement) SC 506, in support of his submission.
10. Section 13 permits the eviction of a tenant when the tenant is shown to have "used the building or rented land for a purpose other than that for which it was leased" without the "written consent of the landlord." The provision does not require that the property should have been damaged. It is true that in Mohan Lal's case (supra), while considering this provision, it was observed that "in the instant case the change of the user would not cause any mischief or detriment or impairment of the shop in question and in the sense could be called an allied business in the expanding concept of departmental stores........there was no change of user which attracts the mischief of Section 13(2)(ii)(b) of the Act." However, in Dashrath Baburao's case (supra) where the premises were taken on rent for the purpose of crushing sugarcane and were actually used for sale of cloth etc. the plea of the landlord was accepted. Similar is the situation in the present case. The finding that there was change in user having been recorded on the basis of evidence on record, no ground for interference in this revision is made out.
11. The Act provides a limited protection to the landlord. It would be unfair to deny him the benefit when the evidence clearly supports the conclusion recorded by the appellate authority.
12. Mr. Sarin then contended that the finding of the learned lower appellate Court that the petitioners had made alterations cannot be sustained. On the other hand, Mr. A.K. Mittal, pointed out that according to the sale deed, Ex. P-l which was executed on November 16, 1978, the shop consisted of only one Khan (a room) and a verandah. He further pointed out that the plan, Ex. P2 indicated the changed position of the shop.
13. A perusal of the sale deed shows that when the present respondent purchased the shop. It consisted of only one Khan measuring 11-9" x 10" x 1/1/2". The open space with only a tin shed in front of the room measured 1' x 10' 1-1/2". A perusal of the plan Ex. P-2 clearly shows that the open space has been now enclosed with walls and a new door has been put in front. In fact an area measuring 10' x 10'has been covered. As a result, only space of about 2' was left in front of the shop. It is, thus clear that there is a substantial alteration in the structure.
14. The owner of a shop has the right to ensure that it is not altered. Whenever a tenant makes any change without the consent of the landlord, he does so at his own peril. It also deserves notice that the petitioners or their predecessors-in-interest have been in possession of the shop for the last more than 50 years. A tenant is not the owner of the shop. Having enjoyed it for 50 years, it is time that the owner gets back the possession.
15. Taking the totality of circumstances into consideration, it is clear that there has been a change of user as also substantial alterations in the shop. The findings recorded by the appellate authority call for no interference. Accordingly the revision petition is dismissed. In the circumstances, there will be no order as to costs.