Delhi District Court
U. P. Twiga Fibreglass Limited vs Gulshan Kumar & Others on 13 July, 2021
IN THE COURT OF MS. NEENA BANSAL KRISHNA:
PRINCIPAL DISTRICT & SESSIONS JUDGE
SOUTH - EAST, SAKET COURTS, NEW DELHI
RCT ARCT No. 01/2019
U. P. Twiga Fibreglass Limited & Others
vs.
Gulshan Kumar & Others
1. U. P. Twiga Fibreglass Limited
Twiga House,
3, Community Centre, East of Kailash,
New Delhi - 110065
2. M. G. Electronics Limited
Twiga House,
3, Community Centre, East of Kailash,
New Delhi - 110065
3. Mr. Binoy Somaia
11, Southern Avenue, Maharani Bagh,
New Delhi
4. Mrs. Ishita Bowry
B-111-A, Greater Kailash Part-I,
New Delhi
5. Mrs. Swati Somaia
11, Southern Avenue, Maharani Bagh,
New Delhi
6. Mrs. Mita Kapila
B-111-A, Greater Kailash Part-I,
New Delhi
7. Mr. Bejul Somaia
11, Southern Avenue,
Maharani Bagh, New Delhi .......... Appellants/
New Delhi Petitioners
RCT ARCT No. 01/2019 Page No. 1 of 45
U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others
VERSUS
1. Mr. Gulshan Kumar
Mini Food Centre
Shop No. 3, Ground Floor,
Twiga House,
3, Community Centre, East of Kailash,
New Delhi - 110065
Also at:
Mini Electrostate,
Shop No. 1 & 2,
41, Community Centre,
East of Kailash, ............ Respondent/
New Delhi - 110065 Tenant
2. Mr. Ishant Chanana
Mini Food Centre
Shop No. 3, Ground Floor,
Twiga House, 3, Community Centre,
East of Kailash, .......... Respondent/
New Delhi - 110065 Sub-tenant
First date before this Court: 31.01.2019
Date of Decision: 13.07.2021
ORDER:
1. An Appeal under Section 38 of the Delhi Rent Control Act, 1958 (hereinafter referred as the Act ) has been filed against the Judgment dated 22.10.2018 vide which the Eviction Petition under Section 14 (1) (b) & (c) of the Act has been dismissed.
2. Facts in brief are that the appellants/petitioners became the joint, absolute and legal owners of the property bearing Plot RCT ARCT No. 01/2019 Page No. 2 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others No. 3, Community Centre, East of Kailash, New Delhi measuring 141.208 square meters by virtue of Conveyance Deed dated 07.04.2015. The suit Shop No. 3 having the area of 40 square feet (8'-2"X6'-3") was rented out by the erstwhile owner to the Respondent No. 1 Sh. Gulshan Kumar on monthly rent of Rs. 150/-, for photocopy business which he has been running from the shop since February, 1980. The appellants claim is that a few years back, Sh. Gulshan Kumar, Respondent No. 1, shifted his business to a bigger shop and the suit premises remained shuttered/locked. Since March- April, 2016 Sh. Ishant Chanana, Respondent No. 2 who is the son of Sh. Gulshan Kumar, Respondent No. 1 is running an unauthorised eatery by the name of "Mini Food Center" and has encroached upon the passages around the shop and blocked the verandas to create unauthorised seating area in front of the shop on the land belonging to DDA/MCD. It is further submitted that the Respondents cooked Chinese and other snacks on an open fire using LPG Gas Cylinders, which caused obnoxious fumes and smell which made it extremely unhealthy and difficult for the staff of the Appellant/ Petitioner No. 1 to work. Moreover, the LPG Gas Cylinders pose huge fire and explosion hazard. Respondent No. 1 has also cut through common passage/verandah opposite the shop for discharging cooking waste, utensils washing and other effluents into municipality drain. Water connection also seems to have been taken. This has resulted in damage to basement RCT ARCT No. 01/2019 Page No. 3 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others ceiling right underneath and cracks have developed at several places, making it susceptible to further damage. Water seepage is likely to happen which may damage the precious records and electronic/electrical equipments kept in the basement.
3. A complaint dated 08.04.2016 was made by the Appellant/ Petitioner No. 1 in this regard to the SHO PS Amar Colony, New Delhi and it also wrote letters to Office of Deputy Commissioner, South Zone, MCD, Lajpat Nagar, New Delhi and Public Information Officer/Deputy MHO (PH), South Delhi Municipal Corporation to seek information if the requisite permissions were obtained by the respondents to run and operate an Eatery from the said shop. As per the response received to the RTI query, no permission has been taken by the respondents from the MCD for running the eatery from the shop and proceedings have been initiated against Sh. Gulshan Kumar Respondent No. 1 under the DMC Act for running this illegal and unauthorised eatery from the said shop. Respondent No. 1 Sh. Gulshan Kumar was also prosecuted under Delhi Police Act in which he pleaded guilty and also paid fine. The Court directed for sealing of the said shop, but subsequently, the respondents broke open the seals and have commenced their Eatery again.
4. The appellants/petitioners have asserted that the shop was let out to Sh. Gulshan Kumar Respondent No. 1 for the purpose of running his photocopy business but is being misused for an RCT ARCT No. 01/2019 Page No. 4 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others Eatry by his son/Respondent No.2. A Legal Notice dated 28.10.2016 was duly served upon the respondents despite which they have failed to stop the misuse of the shop. Hence, the eviction petition was filed for eviction on the grounds of subletting and misuse of premises.
5. Respondents in their written statement took the preliminary objection that there exists no relationship of landlord and tenant between the parties and Respondent No. 1 has never been attorned as a tenant by the appellants/ petitioners. On merits, it is explained that the Respondent No. 1 had taken the premises on rent from Sh. Satnam Singh Monga in February, 1980 on monthly rent of Rs. 150/- without specifying the kind of business and the Respondent No. 1 was free to carry out any kind of business. He paid rent regularly to Sh. Satnam Singh Monga and after receiving the letter dated 07.04.1995 asking him to pay rent to Sh. Y. C. Somaia, who had taken the possession of the suit shop, the Respondent No. 1 has been regularly depositing the rent in his bank account till date. Neither Sh. Satnam Singh Monga ever informed the Respondent No. 1 nor have the appellants/ petitioners ever claimed the rent from the Respondent No. 1. The appellants/petitioners are claiming to be the owners on the basis of the Conveyance Deed executed in their favour by Sh. Satnam Singh Monga, but the Respondent No. 1 was not a party to the execution of the alleged Conveyance Deed. Till date, there has been no attornment in favour of the appellants/ RCT ARCT No. 01/2019 Page No. 5 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others petitioners and there is no relationship of landlord and tenant between the parties.
6. The respondents have further averred that after shutting the business of photocopying, the Respondent No. 1 has started Eating House in which he is assisted by his son/Respondent No. 2, but after being prosecuted by Delhi Police he closed his business and obtained requisite license from the MCD and FSSAI. However, the Respondent No. 1 has not been able to get the order or permission from Delhi Police for which reason business of eatery has been stopped, though shop is open.
7. It is admitted that there was no proper water drainage in the suit shop and the erstwhile landlord did not make such arrangement despite repeated requests because of which Respondents had to make their own provision for water drainage in order to maintain proper hygiene. Respondents have denied that they were cooking Chinese snacks etc. on an open fire using LPG Gas Cylinders or have blocked the area. It is denied that obnoxious fumes and foul smell make it unhealthy and difficult for the staff of the Appellant/Petitioner No. 1 to work. It is denied that there is any misuse of property or any public nuisance is being caused from the business of the Respondent No.1.
8. It is claimed that as the business of Respondent No. 1 expanded he hired some place nearby and shifted the business of Photostat to the new premises. With the assistance of his RCT ARCT No. 01/2019 Page No. 6 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others son/Respondent No. 2 he started the business of Eatry from the suit premises which is a commercial activity and in accordance with the terms of tenancy. The respondents have asserted that the possession of the tenanted shop always remained with the Respondent No. 1 and he has not sublet or parted with the possession of the shop in favour of the Respondent No. 2 or any other person. It is claimed that the petition is without merit and is liable to be dismissed.
9. The appellants/petitioners in their replication reaffirmed the assertions as contained in the petition.
10.The appellants/petitioners in support of their case examined PW-1 Sh. Naresh Sharma, who tendered his evidence by way of affidavit Ex. PW-1/A and has been authorised vide Board Resolution dated 29.08.2016 Ex. PW-1/1 of the appellants/petitioners to depose on their behalf. The Registered Conveyance Deed dated 07.04.2015 along with the Agreement to Sell executed in favour of appellants/ petitioners are Ex. PW-1/2 (Colly). The petition was signed by Sh. Naresh Sharma, who was authorised vide Board Resolution dated 29.08.2016 as Ex. PW-1/3 of M. G. Electronics Limited to sign the petition. Copy of the GPA dated 20.12.2011 executed in favour of the Appellant/ Petitioner No. 3 as Ex. PW-1/4 thereof Appellant/Petitioner No. 5 being represented through Appellant/Petitioner No. 3. The Site Plan is Ex. PW-1/6. The complaint made to the police and other Authorities are Ex. PW-1/7 and Ex. PW-
RCT ARCT No. 01/2019 Page No. 7 of 45U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others 1/8 respectively. Copy of RTI Query and responses are Ex. PW-1/9 and Ex. PW-1/10 respectively. Copy of the order passed by Ld. Metropolitan Magistrate under the Delhi Police Act directing for closure of the shop is Ex. PW-1/11. Photocopies of the suit shop being used for running eatery are Ex. PW-1/13 and the Legal Notice dated 28.10.2016 is Ex. PW-1/14.
11.Respondent No. 1 Sh. Gulshan Kumar appeared as RW-1 and deposed about his defence as mentioned in the written statement.
12.Respondent No. 2 Sh Ishant Chanana appeared as RW-2 in support of the testimony of his father, Respondent No.1.
13.Ld. Addl. Rent Controller observed that the appellants/ petitioners have failed to prove the relationship of landlord/ tenant since the Conveyance Deed was not proved in accordance with law. It was also concluded that Appellants failed to prove that the Respondent No. 1 has sublet the premises to the Respondent No. 2 or that the premises were being misused and that the appellants/petitioners were not entitled for eviction under Section 14 (1) (b) or (c) of the Act.
14.Aggrieved by the said dismissal of the eviction petition , the present appeal has been filed.
15.Ld. Counsel for the appellants/petitioners has argued that an Agreement to Sell dated 21.12.2014 was executed between the erstwhile owner and the appellants/petitioners and subsequently the Conveyance Deed has been executed in RCT ARCT No. 01/2019 Page No. 8 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others favour of the appellants/petitioners. The relationship of landlord/tenant is established not only from the documents of the appellants/petitioners but also from the admissions of the respondents. Ld. Addl. Rent Controller has thus, wrongly concluded that there was no relationship of landlord/tenant between the parties.
16.It is further submitted that the subletting relief under Section 14 (1) (b) of the Act has been declined by asserting that there were no pleadings in regard to the subletting. However, in Paragraph No. 19 it has been clearly averred that the eatery was being run by the Respondent No. 2 son of the Respondent No. 1. It has been sufficiently proved that the possession of the suit shop is with the Respondent No. 2. Ld. Addl. Rent Controller despite there being documents and pleadings to show that the property has been sublet to the Respondent No. 2 has failed to consider this evidence or to give any findings on facts. The evidence and the documents of the respondents proved that the premises have been sub-let and the appellants/petitioners are entitled for eviction under Section 14 (1) (b) of the Act.
17.It has been further argued by the Ld. Counsel for the appellants/petitioners that evidence on record amply proves the misuse of the property where the respondents are admittedly running eatery shop. But Ld. Addl. Rent Controller has again fallen in error by not considering the facts regarding misuse of the property in right perspective and RCT ARCT No. 01/2019 Page No. 9 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others erroneously rejected the petition. It is submitted that the appellants/petitioners are entitled for eviction under Section 14 (1) (b) & (c) of the Act.
18.Ld. Counsel for the respondents has submitted that initially the petition was filed under Section 14 (1) (b), (c) &
(e) of the Act but the ground of eviction under Section 14 (1)
(e) of the Act was withdrawn. It has been argued that the appellant has failed to prove the relationship of landlord and tenant between the parties. The appellants/petitioners have relied upon by the Conveyance Deed but the same has not been proved according to Section 68 of Evidence Act since the attesting witness was not examined. Moreover, the rent was being paid to one Sh. Y. C. Somaia in terms of letter of erstwhile owner Sh. Satnam Singh Monga. The appellants/ petitioners have neither given any letter of attornment nor were the respondents ever informed about purchase of the property by the appellants/petitioners. The appellants/ petitioners for the first time claimed to be the owners in their Legal Notice Ex. PW-1/4. The rent till date is being deposited in the account of Sh. Y. C. Somaia and there exists no relationship of landlord and tenant between the parties. The appellants/petitioners have claimed that Sh. Y. C. Somaia was their relative, but no evidence has been led to this effect.
19.It has been further argued that there was no purpose of business ascribed at the time of creation of tenancy and shop could have been used for any business. Merely because the RCT ARCT No. 01/2019 Page No. 10 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others respondents started the business of Eatery would not amount to misuse of the premises. Furthermore, the Site Plan Ex. PW- 1/6 has not been proved by the appellants/petitioners. It has been thus argued that the appellants/petitioners have failed to prove any ground of eviction and petition has been rightly dismissed by the Ld. Addl. Rent Controller.
20.I have heard the arguments and have perused the record and the evidence led therein. My observations are as under:
21.The main challenges raised by the appellant are that there exists a relationship of landlord-tenant and the suit property has been misused by the respondent by commencing the business of Eatery.
RELATIONSHIP OF LANDLORD-TENANT:
22.The relationship of landlord-tenant is challenged essentially on three aspects which are:
i. Whether the attesting witnesses are required to be examined under S.68 of Indian Evidence Act to prove the Conveyance Deed executed by erstwhile owner in favour of subsequent purchaser; and ii. Whether the attornment of the subsequent purchaser by the tenant is required under Section 109 Transfer of Property Act to establish the relationship between the tenant and subsequent purchaser.RCT ARCT No. 01/2019 Page No. 11 of 45
U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others iii. Whether tenant is estopped from challenging the title of the landlord under S.116 of Indian Evidence Act.
(I) Proof of Conveyance Deed executed by erstwhile owner in favour of subsequent purchaser in accordance with Section 68 of Indian Evidence Act:
23.It is not disputed by the respondents/tenants that the property was owned by one Sh. Satnam Singh Monga from whom he had taken the property on rent in the year 1980 on monthly rent of Rs. 150/- per month. It is further not in dispute that vide letter dated 07.04.1995 Ex. PW-1/D-2 Sh. Satnam Singh Monga informed the respondent Sh. Gulshan Kumar to pay the rent henceforth to Sh. Y. C. Somaia since he had taken over the possession of the suit shop. According to the respondent Sh. Gulshan Kumar, he started depositing the rent in the bank account of Sh. Y. C. Somaia which he has been doing till date. The Respondent has refuted the Conveyance Deed Ex. PW1/2 vide which the appellants have purchased the suit property on the ground that it has not been proved in accordance with law and has denied the ownership of the appellants. Moreover, Sh. Satnam Singh Monga or the present appellants/petitioners have never asked him to pay the rent nor has he ever attorned to the appellants/petitioners and thus challenges the appellant's status as being the owner/landlord of the suit property.
RCT ARCT No. 01/2019 Page No. 12 of 45U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others
24.First aspect which needs to be thus considered is whether the Conveyance Deed dated 07.04.2015 Ex. PW-1/2 executed in favour of appellants has been proved in accordance with law.
25. The controversy raised by the respondent can be best understood by first considering the concept of "Owner- Landlord" in the context of Rent Laws.
26.According to Section 5 of the Transfer of Property Act, if the lessor transfers the leased property, all the rights of the lessor including the right to terminate the tenancy by issuing effective notice gets transferred to the transferee. This section enables the transferee to exercise all the rights of the lessor including the right to terminate the lease and to collect the rent.
27.Section 2 (e) of the Act defines landlord to mean a person who, for the time being is receiving or is entitled to receive the rent of any premises, whether on his own account or on account of or on behalf of, or for the benefit of, any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant. As per this definition, a person who is receiving rent as well as a person who is entitled to receive the rent are both landlords.
28.This section embodies two concepts: one is landlord who is authorized to accept rent in his own right or on behalf of the owner. The other is the owner i.e. who has the title to the suit property and by virtue of being the owner is also entitled to RCT ARCT No. 01/2019 Page No. 13 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others collect the rent. This aspect was explained by Hon'ble High Court of Delhi in Savitri Devi Abdali & others vs. Ram Bhaj Datta, 12 (1976) DLT 334 , in the terms that definition of landlord in the Act is of the widest amplitude and would embrace within it a landlord who is also an owner of the property. In Madan Lal vs. Hazara Singh, 1977 (2) RLR 641 it was held that the definition being all embracing to include every person who is entitled to receive rent as also include owner of the property who is entitled to receive rent. Merely because the owner chooses to let out the premises through an agent would not mean that the owner is not the landlord or would not be in a position to maintain a petition for eviction. Similar were the observations made in Jagjit Kaur vs. Mool Chand & Others, 1982 (3) DRJ 244 .
29.In Rishab Chand Bhandari vs. National Engineering Industry Limited (2009) 10 SCC 601 in the context of Rajasthan Premises (Control of Rent & Eviction) Act, 1950 Hon'ble Apex Court held that the natural landlord of a premises is ordinarily the owner. However, an expanded definition has been given in various rent statutes of many States for the reason that sometimes the owner may not himself be in a position to collect the rent and hence may appoint an agent or authorize any person to collect rent on his behalf because he may be abroad or is unable to do so for any other reason. This does not mean that the natural meaning of the word 'landlord', who is the owner of the premises, would RCT ARCT No. 01/2019 Page No. 14 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others disappear and that the owner goes out of the picture altogether.
30.PW1 Sh. Naresh Sharma, Authorised Representative of the Appellant No. 1 U. P. Twiga Fibreglass Limited proved separate Agreement to Sell Ex.PW1/ 4 (Colly) in respect of the property in question were executed in favour of different appellants/petitioners (which were in respect of different portions of the property in question). These documents also reflect that after the property was made freehold, one Conveyance Deed certified copy of which is Ex. PW-1/2 was executed in respect of entire premises in favour of all the appellants/petitioners, thereby making them all the owners of the property in question. It is apparent that Sh. Y. C. Somaia was authorized to collect rent for and on behalf of the appellants/petitioners and maybe held to be the Landlord. By virtue of the Conveyance Deed Ex. PW-1/2, the appellants/ petitioners have become the owners/landlords.
31.The sole objection taken by Ld. Counsel for the respondents is that the Conveyance Deed on the basis of which Appellants are claiming to be owner/Landlord, cannot be taken note of as it has not been proved by examining at least one of the attesting witness in terms of S.68 of the Evidence Act and that Ld. Addl. Rent Controller has rightly rejected the Conveyance Deed as not proved in accordance to law.
32.Conveyance Deed is a document required to be attested by two attestators under Section 59 of the Transfer of Property RCT ARCT No. 01/2019 Page No. 15 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others Act and in this case it is attested by two attestators. The mode of proof of documents required to be attested is contained in Sections 68 to 71 of the Evidence Act.
33.Section 68 of the Evidence Act reads as follows:
"Section 68: If a document is required by law to be attested, it shall not be used as evidence until one attesting witness atleast has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied."
34.In Ishwar Dass Jain vs. Sohan Lal, AIR 2000 SC 426 a reference was made to Section 68 and it was observed that the document which is registered, is not required to be proved by calling the attesting witness, unless the execution is denied specifically by the person by whom it is purported to have been executed. If there is no specific challenge or denial of execution, then it was not necessary for the plaintiff to call the attestator into the witness box, this not being a will. Non- examination of the attestator could therefore be not faulted to prove the title of the owner on the basis of registered deed.
35.It is evident that a registered document which is not a will is perse admissible against the third party especially when there is no challenge to its authenticity and there is no requirement RCT ARCT No. 01/2019 Page No. 16 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others of examination of at least one attesting witness in terms of Section 68 of the Indian Evidence Act. The appellants/ petitioners have proved the registered copy of Conveyance Deed dated 07.04.2015 Ex. PW-1/2 in their favour by virtue of which they have become the owners of the property in question. The respondents are not a party to the Conveyance Deed Ex. PW-1/2 which is a registered document and have not challenged the authenticity of the Conveyance Deed. The testimony of PW1 was also not questioned in this regard in the cross-examination. Neither Sh. Y. C. Somaia nor any other person including respondent has claimed ownership in the property in question. The proof of registered Coveyance Deed by examining the attesting witness was not mandated by law in given circumstances and Ld. ARC on erroneous interpretation of law concluded that the Conveyance Deed has not been proved as per law.
36.It may also be aposit to refer to R. V. E. Venkatachala Gounder vs. Arulmigu Viswesaraswami and V. P. Temple & Another, AIR 2003 SC 4548 wherein the mode of proof and the manner of taking objection to exhibiting of the document while recording evidence was explained as under:
Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes:- (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the RCT ARCT No. 01/2019 Page No. 17 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court.
37.No objection was taken by the Respondent at the time of exhibiting of the Conveyance Deed as to the mode of proof and any objection taken now is otiose. The Conveyance Deed RCT ARCT No. 01/2019 Page No. 18 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others has to be held to be proved and admissible to establish the ownership of the Appellants in the suit property.
38.Another aspect that needs mention is that according to the respondents they came to know about the ownership of the Appellants for the first time from the Legal Notice Ex.PW1/4 received prior to filing of eviction petition. In this context reference be made to Parwati Bai vs. Radhika, AIR 2003 SC 3995 wherein the Apex Court held that once a Notice of Quit under Section 106 of the Transfer of Property Act is served upon the respondent, an objection as to invalidity or infirmity of Notice under Section 106 of Transfer of Property Act should be raised specifically and at the earliest; and if he chooses not to respond to the same then it amounts to waiver on his part to challenge the invalidity or infirmity of the Quit Notice including the ownership issue raised therein. (This case was also referred to in Apollo Zipper India Limited (infra) . Admittedly, the respondent did not raise any objection to the averments made in the Notice about the ownership either orally or by way of a reply. Such silence again establishes that respondents had no challenge to the ownership of the Appellants.
(II) Attornment under Section 109 Transfer of Property Act of subsequent purchaser by the tenant:
39.The other argument raised by the respondents is that since they did not attorn to the Appellants, they cannot be held to be the owner/Landlord vis-a-viz the suit property.
RCT ARCT No. 01/2019 Page No. 19 of 45U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others
40.The concept of attornment is contained in Section 109 of the Transfer of Property Act, 1982 which reads as under:
Rights of lessor's transferee -- If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him:
Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee. The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased.
41.According to Section 109 on transfer of the property, the transferee succeeds to the rights and liabilities of the lessor in respect of covenants which run with the land. By virtue of Section 109 the tenant is bound to pay the rent to the transferee and he cannot deny the rent merely on the ground that there is no privity of contract.
42.In Mohd. Ilyas & Another vs Mohd. Adil & Others, AIR 1994 Delhi 212 it was explained that "to attorn" merely means to agree to become a tenant of the owner or landlord of a property previously owned or held by another or to agree to recognise a new owner of the property and promise to pay the RCT ARCT No. 01/2019 Page No. 20 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others rent to him. Black's Law Dictionary, Legal Glossary (1988 Edition) issued by the Ministry of Law & Justice defines "attorn" as "to agree to become tenant to one owner or landlord of any estate previously held by another". In the Concise Oxford Dictionary, the word "attorn" means 'transfer: make legal acknowledgment of new landlord. Thus, "to attorn" merely means to acknowledge the relation of a tenant to a new landlord. It merely means acceptance of the new owner as landlord and estoppes the tenant to dispute the landlord's title thereafter. It was held that attornment by the tenant of the landlord is not required.
43.In Mohar Singh (through LRs) vs. Devi Charan & others, 1988 AIR 1365 , it was explained that under the general law such an assignment effects a severance, and entitles the assignee on the expiry of the term to eject the tenant from the land covered by the assignment. Section 109 of Transfer of Property Act provides a statutory exception and enables an assignee to exercise all the rights of the landlord in respect of the portion respecting which the reversion is so assigned subject to the other covenants running with the land. There is no need for a consensual attornment as it is brought about by operation of law. It has the same effect as contractual attornment so that because of a transfer of the lease property, the transferee ipso facto acquires all the rights of the lessor and a new relationship is created between the transferee and the lessee. Letter of RCT ARCT No. 01/2019 Page No. 21 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others attornment is not necessary to complete title to the assignment of the reversion under Section 109 of the Transfer of Property Act. Title of the assignee is complete on the execution of the deed of assignment and is not postponed till the notice of the assignment is given right to ejectment which is inherent in ownership. Section 109 embodies the principle "Qui in jus deminiumve alterius succedit jure ejus uti debet " i.e. rights and liabilities attached to the property (arising out of possession and control of that property) pass with the property as observed in Shankar Sahai vs. Kamal 1971 MP LJ 436 It was further observed that there is nothing in Section 109 of Transfer of Property Act which provides attornment as a condition precedent for the owner to be so. No attornment of the landlord by the tenant is therefore necessary. Reference may also be had to Brij Bihari Prasad & Another vs. Smt. Deoki Devi & Another , AIR 1978 Pat 117 and Hajee K. Assainar & Company vs. Chacko Joseph, AIR 1984 Ker 113 .
44.The claim of the respondents that they never attorned to the appellants/petitioners as their owner/landlord is of little consequence. The respondents may have been informed to pay rent to Sh. Y. C. Somaia and they may have been depositing the rent in his account, but the appellants become the landlord by virtue of having acquired ownership vide Conveyance Deed Ex.PW1/2 in respect of the suit property.
RCT ARCT No. 01/2019 Page No. 22 of 45U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others Ld. ARC thus, fell in error in concluding that the Appellants were unable to prove their ownership in suit property. (III) Rule of estoppel against tenant as embodied in Section 116 of the Indian Evidence Act
45.It would also be pertinent to refer to Section 116 of the Indian Evidence Act which deals with estoppel against tenants or licencees or lessees in possession and falls in the category of estoppel by contract. This principle prevents a tenant in occupation of the demised premises, from denying the title of the landlord, who let him into possession.
46.In Re: Stringer's Estate, LR. Ch. 9, Jessel - M.R ., explained the spirit and rationale underlying the doctrine of estoppel as under:-
"Where a man having no title obtains possession of land under a demise by a man in possession who assumes to give him a title as tenant, he cannot deny his landlord's title. This is perfectly intelligible doctrine. He took possession under a contract to pay rent so long as he held possession under the landlord, and to give it up at the end of the term to the landlord, and having taken it in that way he is not allowed to say that the man whose title he admits and under whose title he took possession has not a title. That is a well- established doctrine. That is estoppel by contract."
47.The principle that a tenant in possession of the property cannot contest the title of the landlord was reiterated by a three-Judge Bench of the Supreme Court in Sri Ram Pasricha vs. Jagannath and Ors., (1976) 4 SCC 184 and the relevant para is as under :-
"14. The relation between the parties being that of landlord and tenant, only the landlord could terminate RCT ARCT No. 01/2019 Page No. 23 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others the tenancy and institute the suit for eviction. The tenant in such a suit is estopped from questioning the title of the landlord under Section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law, in a suit between landlord and tenant the question of title to the leased property is irrelevant....."
48.In Bismillah Be vs. Majeed Shah, 2017 (2) SCC 274 , it was observed that by virtue of Section 116 of the Indian Evidence Act, the tenant is estopped from challenging the title of his landlord during continuance of the tenancy, though he is entitled to challenge the derivative title of an Assignee/Vendee of the original landlord (Lessor) of the demised property in an action brought by the Assignee/ Vendee against the tenant for his eviction from the demised property under the Rent Laws. However, this right of a tenant is subject to one caveat that the tenant/lessee has not attorned to the Assignee/Vendee. If he has paid the rent then it results in creation of an attornment between the parties which, in turn, deprives the tenant/lessee to challenge the derivative title of an Assignee/Vendee in the proceedings. It has been further explained that once the Assignee/Vendee proves his title to the demised property, the original tenant/lessee by operation of law becomes its tenant on the same terms and conditions on which it was entered into with the original landlord/lessor and continues till same is modified by the parties or is determined by the landlord in accordance with law. It enables the Assignee/ Vendee to acquire the status of a RCT ARCT No. 01/2019 Page No. 24 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others "new landlord" in place of the original landlord of the tenanted premises (Law of Evidence by Sarkar, 16 th Edition, pages 2106-2108 ).
49.This authority was followed by Hon'ble Supreme Court of India in Apollo Zipper India Limited vs. W. Newman & Company Limited, (2018) 6 SCC 744 wherein it was observed as under:
40. "It is a settled principle of law laid down by this Court that in an eviction suit filed by the landlord against the tenant under the rent laws, when the issue of title over the tenanted premises is raised, the landlord is not expected to prove his title like what he is required to prove in a title suit.
42. Similarly, the law relating to derivative title to the landlord and when the tenant challenges it during subsistence of his tenancy in relation to the demised property is also fairly well settled. Though by virtue of Section 116 of the Evidence Act, the tenant is estopped from challenging the title of his landlord, yet the tenant is entitled to challenge the derivative title of an assignee of the original landlord of the demised property in an action brought by the assignee against the tenant for his eviction under the rent laws.
However, this right of a tenant is subject to one caveat that the tenant has not attorned to the assignee. If the tenant pays rent to the assignee or otherwise accepts the assignee's title over the demised property, then it results in creation of the attornment which, in turn, deprives the tenant to challenge the derivative title of the landlord.
Two earlier authorities, Sheela vs. Firm Prahlad Rai Premm Prakash [(2002) 3 SCC 375] and Boorugu Mahadev & sons vs. Srigiri [(2016) 3 SCC 343 ] broadly lay down the same principle of law. It is not the law that in a landlord-tenant suit the landlord cannot be called upon at all to prove his ownership of a premises, but onus is not on him to establish perfect title of the suit property."
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50.It has been further observed in Apollo Zipper India Limited (supra) that attornment does not create any new tenancy but once the factum of attornment is proved then by virtue of such attornment, the old tenancy continues as held by the Hon'ble Supreme Court of India in case of Uppalapati Veera Venkata Satyanarayanaraju & Another vs. Josyula Hanumayamma & Another AIR 1967 SC 174 ."
51.Hon'ble Supreme Court of India in Vinay Eknath Lad vs Chiu Mao Chen, (2019) 20 SCC considered the same aspect. It held that in a landlord-tenant suit, the landlord is not required to prove his title in the subject property, unlike in a title suit. The Supreme Court held that it is not the law that in a landlord-tenant suit, the landlord cannot be called upon at all to prove his ownership of the premises, but onus is not on him to establish perfect title of the suit property. The principle of estoppel bars a tenant from questioning the title of the landlord as incorporated in Section 116 of the Indian Evidence Act. In the said case reference was made to Bismillah Be (Supra) wherein it was held that the owners have served the termination notice upon the tenant and once notice was served, it was sufficient notice to the respondent to handover the tenancy rights in the property to the appellant. It was held that subsequent owners are entitled to maintain the eviction petition.
52.This judgment has been followed in recent judgment of Delhi High Court in M/s. Northern India Carriers vs RCT ARCT No. 01/2019 Page No. 26 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others Vinay Kumar & Anr. in RSA No. 39/2021 decided on 22 April, 2021 .
53.The principle of estoppels thus bars a tenant from questioning the title of the landlord as incorporated in Section 116 of the Indian Evidence Act. The owner having acquired suit property by virtue of Conveyance deed is competent to file an eviction after serving Notice to the tenant.
54.To conclude, it is established that appellants/petitioners have proved the Conveyance Deed in accordance with law and they became the owners of the property in question by virtue of statutory attornment under Section 109 of the Transfer of Property Act and no formal attornment by the tenant is mandated by law. The tenant is estopped under Section 116 of evidence Act from challenging the title of the owner. Ld. Rent Controller fell in error in holding that the Conveyance Deed was not proved in accordance with Section 68 of the Evidence Act to establish their title to file the eviction petition. The appellants/petitioners have been proved to be the owners/ landlords and have locus standi to file the present suit. SECTION 14 (1) (B) OF THE ACT:
55.The appellants have sought eviction on the ground of subletting of the tenanted premises under Section 14 (1) (b) of the Act, which reads as under:
That the tenant has used the premises for a purpose other than that for which they were let- (i) if the premises have been let on or after the 9th day of June, 1952, without obtaining the consent in writing of the RCT ARCT No. 01/2019 Page No. 27 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others landlord; or (ii) if the premises have been let before the said date without obtaining his consent.
56.The appellants/petitioners have claimed that the tenancy was created in favour of the Respondent No. 1 Sh. Gulshan Kumar, but he has sublet the premises to his son Respondent No. 2 Sh. Ishant Chanana who is now running the Food Shop.
57.PW-1 Sh. Naresh Sharma also reiterated this position in his testimony. He deposed that he could not say whether the premises had been sublet by Respondent No. 1 Sh. Gulshan Kumar to the Respondent No. 2 Sh. Ishant Chanana, neither any oral nor documentary evidence has been adduced by the appellants/petitioners to bring home the subletting.
58.In this context, a reference be made to the testimony of Respondent No. 1 Sh. Gulshan Kumar (RW-1), who has explained that he has been running a Food Shop in which he is being assisted by his son Respondent No. 2 Sh. Ishant Chanana (RW-2). There is no challenge to his testimony by the appellants/petitioners by way of cross-examination.
59.Likewise, Respondent No. 2 Sh. Ishant Chanana appeared as RW-2 and stated that he has been living with his father Sh. Gulshan Kumar, Respondent No. 1 and was helping in his business of running photostat shop, but later the Food Shop was opened and the business is being run collectively and there has been no subletting of the premises. He specifically deposed that the actual physical possession of the shop in dispute continues to be remained with his father and the shop RCT ARCT No. 01/2019 Page No. 28 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others has not been sublet to him. Again, there is not a word of cross-examination to this aspect and there is no challenge to the testimony of the Respondent No. 2.
60.What emerges from the pleadings and the evidence is that the Respondent No. 1 Sh. Gulshan Kumar has the physical, legal and actual possession of the suit shop in which his son Sh. Ishant Chanana, Respondent No. 2 has been managing the business of Food Shop, which was set up by them jointly.
61.Ld. Rent Controller has rightly mentioned that in the Eviction Petition there are no specific averments made in regard to subletting. In Paragraph-19 (iv) of the petition the appellants/ petitioners had stated that they did not know whether the tenanted premises had been sublet by the Respondent No. 1 Sh. Gulshan Kumar to the Respondent No. 2 Sh. Ishant Chanana. In Paragraph-18 of the petition it was categorically stated that the eviction was sought on the ground of misuse of the tenanted premises for being used for the purpose other than for which it was let out to the tenant. There was no mention in Paragraph-18 of the petition in regard to subletting.
62. The appellant neither in his pleading nor by way of evidence has been able to prove subletting. It has been rightly concluded by Ld. Addl. Rent Controller that no subletting has been proved and the appellants/ petitioners are not entitled to eviction under Section 14 (1) (b) of the Delhi Rent Control Act.
RCT ARCT No. 01/2019 Page No. 29 of 45U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others EVICTION ON THE GROUND OF MISUSE UNDER SECTION 14(1) (C) OF THE ACT:
63. The appellants have claimed that the respondent changed the business to Eatry when respondent was given premises for Photostat business and thus liable for eviction on the ground of misuse of premises. Section 14(1) (c) reads as under:
(c) used the building or rented land for a purpose other than that for which it was let:-
(i) if the premises have been let on or after the 9th day of June, 1952, without obtaining the consent in writing of the landlord; or
(ii) if the premises have been let before the said date without obtaining his consent;
64.Before considering the facts of the present case, it is significant to understand the import of the phrase " misuse of premises." The plain reading of this sub-section points that for its interpretation and meaning one must first determine "the purpose" for which the building or rented land was leased which may be labeled as the specific original purpose. This indeed is the anchor or the anvil on which either the immediate or the subsequent change of user is to be tested. Consequently, herein the basic premise is to first determine with precision as to what was the original purpose of the lease of the premises. For this, one has to examine closely the language of the lease deed if there is a written document to this effect. Failing that the Controller must RCT ARCT No. 01/2019 Page No. 30 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others determine the terms from the oral or the documentary evidence established on the record regarding the specific original purpose of the lease. The specific original purpose so determined either from the Lease Deed or the surrounding circumstances then has be precisely construed with regard to its scope and what can reasonably come within its terms. Once, this is settled then alone can one proceed to the next stage of the enquiry.
65. The next stage of enquiry is to analyse whether the premises have been used for a purpose 'other' than that for which they were leased. To put it in well-known phraseology the issue is--has there been a change of user or not? The Controller has to be satisfied that the subsequent user is 'other' or different from the specific original purpose. Though on principal and the language of the statute, the intent seems to be clear yet this somewhat ambivalent issue has posed serious problems in its practical application.
66. Succinctly stated, the enquiry for determination of change of user is two-fold:
(1) what was the original specific purpose for which the premises were let out; and (2) whether in given circumstances, there is a change of user
(i) ORIGINAL SPECIFIC PURPOSE OF LETTING:
67.The tenancy in the present case is admittedly an old tenancy created by the erstwhile owner Sh. Sardar Singh Monga in RCT ARCT No. 01/2019 Page No. 31 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others 1980. The Respondent No. 1 Sh. Gulshan Kumar has admittedly being running the business of photostat Shop for last more than 40 years and the shop was lying closed for an intervening period and thereafter Food Shop was opened by his son Sh. Ishant Chanana for commercial purpose.
68.What needs to be considered is whether it was let out for the specific purpose for running a Photostat business. In this context, it would be pertinent to refer the Legal Notice Ex. PW-1/14 wherein it was specifically told by the landlord that the premises had been rent out specifically for the purpose of running photostat machine. There was neither any reply nor any rebuttal to this testimony. In Parwati Bai (supra) the Apex Court held that once a Notice of Quit under Section 106 of the Transfer of Property Act is served upon the respondent, an objection as to invalidity or infirmity of notice under Section 106 of the TP Act should be raised specifically and at the earliest; and if he chooses not to respond to the same then it amounts to waiver on his part to challenge the invalidity or infirmity of the Quit Notice including the ownership issue raised therein. Admittedly, despite receiving the Legal Notice no reply refuting the averments of Legal Notice was given by the Respondent.
69.It is also relevant to refer to the letters Ex. PW-1/15 (Colly) that had been written by Respondent No. 2 Sh. Ishant Chanana to Sh. Vinod Somaia on behalf of Twiga House with the request of taking bsack the complaints in response to RCT ARCT No. 01/2019 Page No. 32 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others various complaints that were made by the landlord to the police and other agencies in regard to running of the Food Shop in the suit premises. In these letters the respondent himself has stated "....that it was originally let out for running photostat machine business."
70.In the first handwritten letter, the Respondent No. 2 himself has stated that "they have been operating the shop No. 3, Community Center by the name of Mini Electrostat for more than 40 years" and they have not disturbed or created any problem of the office of the appellants/petitioners and that they have a good relationship and no complaint has been made from other side. The other request letter dated 28.07.2016 written by the Respondent No. 2 Sh. Ishant Chanana is also to the same effect.
71. From these letters, as well as, from the Legal Notice it can be easily inferred that the specific purpose for which the shop had been let out was for running Photostat business.
(2) WHETHER THERE HAS BEEN MISUSE OF THE PREMISES:
72. The first test for determination of misuse was explained by the Full Bench of High Court of Punjab and Haryana in Sikandar Lal vs. Amrit Lal, AIR 1984 PH 133. It was observed that from the long line of authorities it has emerged that where the subsequent use of the premises is merely RCT ARCT No. 01/2019 Page No. 33 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others ancillary to the specific original purpose then it would imply no change of user within the meaning of the statute. It was further held that the specified original purpose could not be extended by adding to it any and every purpose thereto, and the same must be confined within the limitation of being either a part or parcel of, or ancillary to, the original purpose. However, a strong note of caution was sounded by noting that it is not possible always to draw a clear-cut razor sharp line between what is a part or ancillary to the specific original purpose and what is not so. What deserved highlighting negatively was that the concept of being a part or being ancillary to the specific original purpose, cannot be extended to all and` every allied purpose thereto. High Court of Delhi In Gokal Chand vs. Romesh Chander & Another, MANU/ PH/0005/1993 has taken a similar view.
73.Hon'ble Supreme Court of India again considered the case law pertaining to the change of user in Jagdish Lal vs. Parma Nand (2000) 5 Supreme Court 44 and made similar observations. It was held that although the premises if let out for commercial purpose, carrying on of a new business would not amount to change of the user of building the new business should either have some linkage with the original business, which under the agreement of lease the tenant was permitted to carry on, or it should be an allied business or ancillary to that business. It was further observed that the premises let out for commercial purposes, carrying on of a new business RCT ARCT No. 01/2019 Page No. 34 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others activity therein would not change the nature of the building and it would still remain a commercial building, but that is not enough. Having regard to the provisions of the Act and the intendment of the legislature in providing that the tenant would not use the premises for a purpose other than for which it was let out, the new business should either have some linkage with the original business, which under the agreement of lease the tenant was permitted to carry on or it should be an allied business or ancillary to that business.
74.The philosophy for construing the allied business as not amounting to misuse of premises seems to be that a shop which is meant to be used exclusively for commercial purposes must be used for that purpose. If the tenant has started a business in that shop and that business does not succeed and it does not bring in sufficient monetary returns to enable him to earn his livelihood, he would naturally abandon that business and start a new venture. The new venture may not be the same which was initially carried on. It will be permissible only to a limited extent, that is to say, if the tenant was permitted to sell his goods and the shop was meant as an outlet for the goods manufactured by him elsewhere, he cannot start the manufacturing process in the shop itself as was noted by the Supreme Court in Grudial Batra vs. Raj Kumar Jain AIR 1989 SC 1841 . A reference was made to Section 108(o) of the Transfer of Property Act, 1882 which, inter alia, provides as under: "the lessee may use the RCT ARCT No. 01/2019 Page No. 35 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased......". The words "use the property for a purpose other than that for which it was leased" occurring in this clause mean that the change of business would not bring about change of user as contemplated by this clause. It will thus be seen that mere change of business does not amount to change of user within the meaning of the Act.
75.The true import of what would amount to "ancilliary or allied business" can be understood best by reference to the precedents.
76.In Grudial Batra (supra) a similar provision under Section 13 (2) (ii) (b) of East Punjab Urban Rent Restriction Act, 1949 came to be considered. The shop was let out for cycle and rickshaw repairing business, but the tenant started the television business. The Supreme Court held that in the circumstances of the case, "the business of selling television sets" which was started by the tenant in that shop cannot be said to be a purpose other than that for which the shop was let out.
77.The question directly arose before their Lordships of the Supreme Court in Maharaj Kishan Kesar v. Milkha Singh, 1966 Cur LJ 273 . The tenant therein had originally taken on lease to set-up a motor workshop in one of the buildings RCT ARCT No. 01/2019 Page No. 36 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others constructed by him on the site in accordance with the lease deed. Later the tenant setup a petrol pump on the vacant site on the premises of his workshop. Here, the tenant continued his workshop but in addition set up a petrol pump on the part of the premises while continuing with his workshop. The Supreme Court held that the expression 'workshop' as understood in the trade has a very wide connotation. While the business of selling petrol cannot be called as an allied business of the workshop, there is little doubt that it can well be regarded as part of the business. Admittedly here it is a motor workshop and by installing a petrol pump as an adjunct to the workshop it cannot be said that any diversion of the original purpose of the lease was effected.
78.In Bakhshi Singh vs. Naubat Rai, 1969 Ren CJ 117 the specified purpose for renting the premises was for the sale of chaff-cutters. However, the tenant later set up machinery for the manufacture of spare-parts for the said chaff-cutters. It was held that plainly enough, the industrial activity of manufacture is, in no way, a part and parcel of the commercial activity of a mere sale of the commodity. Similarly, in Both Ram v. Mathra Dass, 1976 Ren CR 65 the original purpose of the lease was the running of a fuel- wood shop, but the tenant changed the user to that of a dairy business and keeping of much animals at the premises. it was held that no great erudition is needed to hold that this would not even remotely be a part and parcel of or, in any way, RCT ARCT No. 01/2019 Page No. 37 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others ancillary to, the original specified purpose of running a shop for fuel-wood. Again in Mehta Baldev Dutt vs. Puran Singh, (1980) 1 Ren CR 130 , it was held that the setting up of an embroidery business was an obvious change of user from the original purpose of a tailoring business for which the premises had been leased.
79.In Ram Gopal vs. Jai Narain and Ors. 1995 Suppl. (4) Supreme Court Cases 648 , it was observed that categorization of buildings into commercial and residential is a broad categorization, but it is the user of the shop which is material for seeking eviction of the tenant. The words of this Section are clear and convey a plain meaning that if the purpose for which the shop was to be used was abandoned and it was put to use for any other purpose, though it may be commercial in nature, the tenant would be liable to be evicted. The eviction of the tenant was upheld as the tenant installed atta chaki and oil Mill in the premises meant for running of a general merchandise shop for sale of ready-made garments and cloth. A reference was made to the decision of Apex Court in Rattan Lal vs. Asha Rani (1988) 3 SCC 586 , in which the shop was let out for grocery business but the tenant started selling books in that shop. But it was held that the change of business does not amount to change of user as contemplated by the Act and, therefore, the tenant was not liable to be evicted.
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80.In Dashrath Baburao Sangale & Ors. vs. Kashimath Bhaskar Data 1994 Supp (1) SCC 504 = AIR 1993 SC 2646 , an open piece of land was let out for carrying on the business of sugarcane crushing. The tenant used it for selling cloth and ready-made clothes. It was held that there was a change of user as the land let out to the tenant was not being used for the purpose for which it was let out. The tenant was held liable for eviction.
81.In Jagdish Lal (supra) the premises was let out to the appellant for "Maniari" [(General Merchant) Ready-made & Cloth Merchant] business. The setting up of a restaurant therein and serving tea and cold drinks were held to amount to change of user within the meaning of Section 13.
82.In Banwari Lal vs. Iqbal Singh (1980) 2 RCR 119 , the shop portion of the building was let out to the tenant for carrying on the business of "General & Provision Store", but he switched over to the business of selling "stones and marble chips." It was held that since there was a change of user, the tenant was liable to ejectment.
83.In Santosh Tangri vs Ved Matta, MANU/PH/ 0743/2002 , Hon'ble Punjab & Haryana High Court observed that the change of user from the business of milk diary to the business of dry-cleaning would amount to change of user making the tenant liable for eviction.
84.From the aforesaid host of judicial pronouncements the crucial authoritative test which emerges is that where the RCT ARCT No. 01/2019 Page No. 39 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others alleged subsequent use can be held to be a part of the specific original purpose then it would not amount to a change of user within clause (b) aforesaid.
85.Another criteria for determination of allied business was prescribed by the Supreme Court in Mohan Lal vs Jai Bhagwan (1988) 2 SCC 474 wherein it was held that the other business which would not in any way impair the utility or damage to the building, and the business could be conveniently carried on in the said premises. No nuisance should also be created. It was observed that in the expanding concept of business nowadays and the growing concept of departmental stores, it cannot be said that there was any change of user in the instant case, when the tenant converted the use of the building from liquor vending business to that of general merchandise. In the background of the purpose of rent legislation and in as much as 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 one sense could be called an allied business in the expanding concept of departmental stores.
86.Hon'ble Supreme Court of India in Mohan Lal case (Supra) laid down the proposition that if the landlord has proved mischief or detriment or impairment of the shop then the tenant would not be able to resist eviction on the ground of change of user.
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87.From the compendium of judgments it may be concluded that where premises have been let out for commercial purposes and the nature of business is specified, then change of business simpliciter would not amount to misuse of premises if the business is allied or ancillary to the original purpose. One criteria is to determine the true nature of the business activity i.e. if the business is for sale of goods, its change to selling other item it would not amount to misuse since inherently the activity is of sale even if it is of different goods. The second criteria is to determine the change of nature of business is to consider whether the other business would not in any way impair the utility or damage to the building, and the business could be conveniently carried on in the said premises without creating any nuisance.
88.In the light of principles for determination of misuse of premises as stated above, the facts of the present case need to be examined.
89.The respondents themselves have claimed that they have started running the Food Center since 2016. In the letter dated 28.07.2016 Ex. PW-1/15, the respondents have admitted that they had committed big mistake of opening the disposal pipeline without prior permission for which the respondents assured the appellants/petitioners that they will make good the loss that has been caused to the basement. It has been further submitted in the letter that they will keep the tandoor outside the shop daily after closing the shop at night, to minimize the RCT ARCT No. 01/2019 Page No. 41 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others risk of fire to 100% at all. It is further submitted that they shall keep proper fire extinguisher in the shop and their one staff will sleep outside the shop daily safeguarding the property from all kinds of risks. It has been further submitted that they have a good disposal system will not create any problem in the basement shall have good ducting system for smoke; take proper license from government and keep the cylinders closed at night outside the shop and shall take all other measures that may be considered necessary by landlords. . It has been admitted by RW-2 Sh. Ishant Chanana in his cross-examination that the drainage system was made in the shop in the year 2016.
90.These averments of the respondents establish that there has been change of user of the business from Photostat shop to that of Food Center and by no stretch of interpretation can the business of Food Center be considered as ancillary or subsidiary business of Photostat business. For coming to this conclusion reference may be made to Om Prakash vs. Parmeshri Dass 1984(1) All India RCJ 241 wherein Punjab & Haryana High Court held that a tenant to whom the shop was let out for carrying on the business as General Merchant and "Kirana" had changed his business and started a tea-stall where he was also selling cold drinks, would be treated to have changed the user and the tenant was liable to eviction. The same High Court in Pratap Singh vs. Ajmer Singh 1984(1) All India RCJ 431 held that if the shop was RCT ARCT No. 01/2019 Page No. 42 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others let out to the tenant for doing business in "dry fruits and soda water", he could not set up an "oven" and prepare 'pakoras' as it would amount to material and substantial change in user of the shop in question.
91.Moreover, it is established from the letter Ex. PW-1/15 of the respondents itself that there existed no water drainage which has been created by the respondent himself and the business was detrimental to the property and of serious health concern and safety issues. Change of user to Food Center thus qualifies as misuse of the premises in terms of Section 14 (1)
(c) of the Act. The evidence on record thus proved that the premises had been let out for the business of photostat but the same has been changed to the business of Food Center, which cannot be considered ancillary to the parties by the Conveyance Deed.
92.The twin test for determination of misuse stands satisfied in the present case.
COMPLIANCE OF SECTION 14 (5) OF THE ACT:
93.However, Section 14 (5) of the Act provides that no application for the recovery of possession of any premises shall lie on the ground of specified in Clause (c) to Proviso Section 14 of the Act, unless the landlord has given a notice in the prescribed manner requiring him to stop the misuse of the premises and the tenant has refused to comply with such RCT ARCT No. 01/2019 Page No. 43 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others requirement within one month of the date of service of the notice.
94.In the present case, eviction petition has been filed on 23.11.2016 while Legal Notice Ex. PW-1/14 is dated 28.10.2016. This implies that the mandatory Notice of one month for giving an opportunity to the respondent to stop the misuse has not been given prior to the filing of the petition. The requirement of Section 14 (5) of the Act was therefore not satisfied before the filing of the eviction petition.
95.It may also be pertinent to mention that the proceedings under Section 28/112 of Delhi Police Act had been initiated in which the respondents were convicted and fine of Rs. 50/- was imposed. There was order as well for closure of the shop. Respondent No. 1 Sh. Gulshan Kumar has admitted that Delhi Police had stopped him from running the Food Shop for last one year and further admitted that he had no license for running the Food Shop. He volunteered that the presently he was not doing any business but using the premises as go- down. He further clarified in his cross-examination that he has obtained the license from MCD and FSSAI, which are Ex. RW-1/P-1 to Ex. RW-1/P-2 RW-1 Sh. Gulshan Kumar in his cross-examination has admitted that he does not have permission from Delhi Police for running the Food Shop.
96.It is thus not in dispute that on account of proceedings initiated under Section 28/112 of Delhi Police Act, the Food Center had been stopped by the orders of the Court dated RCT ARCT No. 01/2019 Page No. 44 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others 08.07.2016, which implies that the misuse of the premises had been stopped much prior to the service of the Legal Notice ExPW1/4 dated 28.10.2016 and there was no cause of action for the Appellant for filing of the eviction petition on the ground of change of user under S14 (1) (c) of the Act.
CONCLUSION:
97.The order of Ld. Rent Controller dismissing the eviction petition under Section 14 (1) (b) & (c) is therefore upheld though for the reasons as discussed above.
98.In view of above, the present appeal is hereby dismissed. Trial Court be sent back along with a copy of this order.
99.Appeal file be consigned to Record Room.
Announced in the open (NEENA BANSAL KRISHNA) Court on 13.07.2021 Principal District & Sessions Judge (KSR) South East, Saket Courts, New Delhi RCT ARCT No. 01/2019 Page No. 45 of 45 U. P. Twiga Fibreglass Limited & Others vs. Gulshan Kumar & Others