Punjab-Haryana High Court
Rattan Lal vs Om Parkash And Ors. on 16 November, 2002
Equivalent citations: (2004)136PLR190
Author: J.S. Narang
Bench: J.S. Narang
JUDGMENT J.S. Narang, J.
1. This judgment would dispose of two revision petitions bearing No. 1463 and 1925 of 1983, as common question of law and facts are involved in both these cases. Facts are taken from C.R. No. 1925 of 1983.
2. The landlord i.e. petitioner-respondents filed a petition under Section. 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as "the act"). The grounds set up for seeking ejectment have been spelt out in the petition inclusive of the ground of non payment of arrears of rent. A second petition was also filed on similar ground and also claiming a ground of non payment of rent for the subsequent period. Both the petitions were consolidated and disposed of by a common judgment passed by the Rent Controller. However, the tenant being dissatisfied with the judgment dated 26.2.1982 filed two appeals before the appellate authority and the appeals were also decided by a common judgment rendered on May 6, 1983 vide which both the appeals have been dismissed. Resultantly, two petitions have been filed challenging the same order.
3. The landlords have claimed that they are the joint owners of the demised premises which was purchased by them vide a registered sale deed dated August 4, 1965 from Moti Ram and others. It is alleged that a monthly tenancy was created at the rate of Rs. 50/- p.m. four years prior to the filing of the petition. Prior thereto the petitioner-respondent was a tenant under M/s. Net Ram Bhola Nath at the rate of Rs. 30/- per month. The grounds for eviction set up are:-
(a) The respondent did not pay rent from July 1, 1974 at the rate of Rs. 50/- per month and that he is required to pay interest, costs if he chooses.
(b) The premises have been materially altered impairing the value and utility of the demised premises.
(c) The demised premises had been let out for business premises but the same are being now used as godown and that the premises have been locked and closed continuously for more than four months.
(d) The building has become unfit for human habitation.
(e) The demised premises are required by the landlords for their own use and occupation.
4. The tenant contested the petition and has denied the relationship of landlord and tenant. He has also denied that the rate of rent is Rs. 50/- per month. It is alleged that he was a tenant under Net Ram Bhola Nath at the rate of Rs. 190/- per annum and that for the last 13 years the said firm has not claimed any rent. However, the rent has been tendered at the rate of Rs. 190/- per year w.e.f. 1.7.1974 along with costs and interest. The allegation of impairment of the value and utility of the building has been emphatically denied. In respect of change of user, it has been alleged that the demised premises had in fact been taken for the purpose of storing Bhusa etc i.e. the demised premises were being used as godown from day one. So far as the status of the building is concerned it is alleged that the same is absolutely fit for human habitation. The ground of personal necessity has been categorically and emphatically refuted.
5. Upon the pleadings of the parties, the issues have been framed and the parties led documentary as well as oral evidence. The. Rent Controller returned finding in respect of rate of rent in favour of the tenant and has held that the rate of rent is Rs. 190/- per year. Since the rate of rent has been found in favour of the tenant the question of tender being short or illegal did not arise, Resultantly, the issue in this regard has been found in favour of the tenant and against the landlords. So far as material impairment and utility of the building is concerned, the finding has been returned against the landlord and in favour of the tenant.
6. Regarding change of user it has been held that the demised premises were never ever let out for being used as godown as the premises had always been defined as a shop and that nowhere the premises were defined as godown. It may be noticed that the tenant is in occupation of two shops, one is defined as shop No. 5 and the other as shop No. 1, separate proceedings for ejectment from these shops have been initiated. For the purpose of description of status of these premises reliance has been placed upon a written statement filed by the petitioner wherein the word used for describing these premises in Urdu language is "Dukanen" i.e. plural of the shops and it has been stated in the written statement that these shops were being used for running the business of Halwai. This written statement has been defined as shop and not godown. Resultantly, while returning finding on issue No. 4, the Rent Controller has categorically observed that the demised premises is a shop and that the user of the same as godown as has been claimed by the landlord would amount to change in user of the premises. Resultantly, the order of eviction has been passed on this ground alone.
7. The tenant has also taken additional plea applying the principle of estoppel on the ground that the demised premises were being used as godown for keeping his cattle even when the previous application had been filed against him. Since the plea of change of user had not been taken in the earlier proceedings, as such, the landlord is not entitled to take up the said plea in the present proceedings. Since the user of the shop as godown stood accepted by the landlord by way of concession and having accepted the rent accordingly, the landlord is estopped from taking up this plea against the respondent-petitioner.
8. The additional plea taken by the tenant is rather vague and scanty. It has not been disclosed anywhere as to when the alleged change of user came into existence, as such, the plea of estoppel cannot be allowed to be availed of by the tenant. Even otherwise, the plea is self contradictory. In the first instance, the plea has been taken that the premises were being used as godown from the inception of tenancy, if that plea is permissible, the plea of estoppel would be non est. It looks that the tenant himself is not clear as to which plea is to be taken firmly.
9. The plea of demised premises being unfit for human habitation has not been established as no corroborative evidence has been brought on record in this regard. Resultantly, the finding has been returned upon this issue against the landlord and in favour of the tenant. Since the finding has been returned in favour of the landlord relating to issue No. 4 i.e. change of user, the petition has been allowed by the Rent Controller. Being dissatisfied the appeals had been filed before the appellate authority. The appellate authority affirmed the finding of the Rent Controller and resultantly upheld the judgment of the rent Controller. The plea of constructive res judicata has been rejected.
10. Learned counsel for the petitioner has argued that the, forums below have given incorrect finding in respect of change of user. The plea has not been taken in the right and correct perspective as no plea has been taken that the change of user was made without consent of the landlord. Since the specific plea has not been taken as such the ingredient in this regard has not been fulfilled, therefore, the finding in this regard needs to be reversed. However, a reference has been made to the statement of a witness produced by the landlord i.e. AW5 Nihal Chand son of Chattarbhuj. It is argued that the said witness has categorically stated that the premises in question was being used as go-down. The perusal of the statement shows that the said witness has categorically stated that the shop "is" being used as godown. There is no suggestion put to the witness as to since when the shop is being used as godown. There is no suggestion to the effect that the shop was being used as godown right from the inception of the tenancy. The perusal of the statement shows that the witness has described the present status on the date when the statement was recorded. It cannot be understood that the shop was let out as a godown right from the inception of tenancy. Apart from this, the plea taken by the tenant in the written statement exhibited as Ex.A9, shows that the word "Dukanen" has been used.
11. Learned counsel for the appellant has argued that the provisions of 1945 Act cannot be applied to the detriment of the tenant. The tenancy was created in the year 1944-45 and, therefore, the rights of the tenant cannot be subjected to the rigour of the provisions of the Rent Act. In this regard, reliance has been placed upon in re: Mrs. Balram Kaur v. Parkash Cloth Store and Anr., 1989 R.C.R. 655.
12. It has been further argued that the plea of change of user is not sustainable as nowhere it has been pleaded that such change had occurred without the consent of the landlord. It is essential ingredient for setting up the plea of change of user and that if no such plea has been taken, the eviction on the ground of change of user cannot be claimed nor is sustainable under law. In this regard, reliance has been placed upon decision of the apex Court in re: Gurcharan Singh and Ors. v. V.K. Kaushal, 1981(1) R.C.R. 59 and in re: Shri D.S.S. Industries (P) Ltd. v. Shri G.S. Sial, IAS (Retired), 1981(1) R.C.R. 611 (Delhi).
13. On the other hand, learned counsel for the respondent has argued that the Rent Controller has correctly come to the conclusion that as per the admission of the tenant made while submitting written statement which has been exhibited as Ex.A9, he has categorically used the word "Dukanen" and that it had never been the stand of the tenant that the demised premises were being used as godown. Thus, it is too late in the day to accept the plea of the tenant that the premises in question were being used as go-down and that there is no change of user.
14. It has been further argued that the tenant is not clear as to what stand has been taken by him correctly. The plea of estoppel and that plea of constructive res judicata has been pleaded on the ground that by virtue of the concession given by the landlord by accepting the rent for the premises when being used as godown, the plea of change of user cannot be taken for seeking eviction of the tenant.
15. The tenant has not given any date for projecting change of user while taking shelter of constructive res judicata. In the first instance, the plea has been taken that the premises has been taken for being used as godown from the date of inception of the tenancy but again no piece of evidence has been brought on the record in this regard and that for taking up the plea of constructive res judicata, no description is forthcoming as to when the change of user had come into existence. Thus, both the pleas are not available to the tenant being vague and undescribable.
16. Reliance has been placed upon the judgment of this Court in re: Chajju Ram v. Tulsi Das and Anr., (1977)79 P.L.R. 259 and in re: Des Raj v. Sham Lal (1980)82 P.L.R. 647 (F.B.). Reference has also been made to the statement of AW1 Om Parkash who has categorically given the description of the property and he has categorically stated that now for the last two and half years/three years the premises are lying locked. He has categorically stated in the cross examination that the shop in question had been agreed to be used for carrying on business and he has further categorically denied that the demised premises were ever to be used as godown or was being used as godown from the inception of tenancy. He has further clarified that the shop was not being used as godown at the time of creation of tenancy.
17. Upon hearing the rival contentions of learned counsel for the parties. I am not at all impressed by the argument that the witness AW5 has corroborated the fact that the demised premises were being used as godown right from the beginning. The tenant has not been able to take a clear stand vis-a-vis his possession relating to the shop. It is evident from the written statement Ex.AW9 where the premises have been described as shops and that no stand has been taken by the tenant while filing the written statement that the demised premises was being used as godown. Thus, the plea taken by the tenant that the premises in question was being and was to be used as godown from inception of tenancy, is not sustainable. The plea of estoppel and/or constructive res judicata is also not available to the respondent-petitioner as the tenant has not been able to establish as to since when the change of user had come into existence. The tenant himself is not clear about the plea which has been taken by him. However, the factum of change of user stands established and that the plea of change of user and/or the shop lying closed for the last 2-1/2 to 3 years has also gone unrebutted.
18. The respondent-petitioner has not taken the plea before the Rent Controller that the ingredients for claiming the plea of change of user have not been fulfilled, as such, the relief on account thereof cannot be granted. The only additional plea which has been taken is that the petition is not sustainable on account of constructive res judicata as the landlord accepted the rent after the change in user had come into existence but this plea has not been established at alt as the tenant has not been able to establish the date of change of user and that the earlier petition having been filed after the status became known to the landlord.
In view of the above, I do not find any infirmity in the finding given by the Rent Controller upon issue No. 4 which has been further upheld by the appellate authority. Resultantly, the petition is dismissed with no order as to costs.