Delhi High Court
Kanshi Nath Ram Nath Dharmarth Trust vs Subhash Chand Gupta on 10 November, 2008
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog, J.R. Midha
R-100
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.862/1987
Date of decision: 10th November, 2008
% KANSHI NATH RAM NATH
DHARMARTH TRUST ..... Appellant
Through : Mr. P.K. Aggarwal, Adv.
versus
SUBHASH CHAND GUPTA ..... Respondent
Through : Mr. P.D. Gupta, Adv.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE J.R. Midha
1. Whether Reporters of Local papers may
be allowed to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be
reported in the Digest?
Pradeep Nandrajog, J. (Oral)
1. Heard learned counsel for the parties.
2. Undisputable, vide rent note dated 17.07.1981, Ex.PW1/2, the appellant let out the suit property, i.e. a shop for a period of 11 months recording therein that the respondent would use the tenanted premises for carrying on jewellery business.
3. The exact words in the lease agreement, Ex.PW1/2, are : RFANo.862/1987 Page 1 of 6
„Baraya karobar jewelers kiraye per le hai'
4. Alleging that the tenant switched over the use of the tenant premises from that of jewellery business to sale of food stuff, and in particular potato cutlets, suit was filed by the appellant seeking a decree of injunction to restrain the respondent from using the shop for a purpose other than for which the shop was let.
5. Finding returned by the Learned Trial Judge is that letting being for a commercial purpose, it hardly matters as to what was sold from the shop and hence the prayer in the suit has been declined.
6. What has weighed with the Learned Trial Judge is the following:-
a) There is no covenant in the lease agreement prohibiting the tenant to use the shop for a purpose other than for which it was let.
b) That the letting was for a commercial purpose and hence the shop could be used for any commercial purpose.
c) There is no proof of annoyance or inconvenience resulting by the change in the use of the shop.
7. Section 108(O) of the Transfer of Property Act reads as under: -
RFANo.862/1987 Page 2 of 6
"The lessee may use the property and its product (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, or fell or sell timber, pull down or damage buildings belonging to the lessor, or work mines or quarries not open when the lease was granted, or commit any other act which is destructive or permanently injurious thereto."
8. In the decision reported as AIR 1980 PHH 229 Des Raj vs. Shyam Lal a full bench of the Punjab & Haryana High Court held that where the carrying on of a particular business is specified in the lease agreement the premises can be used for said business purpose and no other.
9. Learned counsel for the respondent urges that the Hon‟ble Supreme Court in the decision reported as AIR 1988 SC 1034 Mohal Lal Vs. Jai Bhagwan held that change of use of a shop from one commercial purpose to another does not amount to use of a premises for a purpose other than for which it was leased. Counsel urges that in this view of the matter the view taken by the Learned Trial Judge is unexceptionable.
10. Counsel further urges that even otherwise in view of Section 41 (h) of the specific relief act, the suit required to be dismissed in as much as under Section 14 (c) of the Delhi RFANo.862/1987 Page 3 of 6 Rent Control Act 1958, the landlord can seek eviction of a tenant who uses the tenanted premises for a purpose other than that for which the same was let.
11. We are afraid, neither submission made by learned counsel for the respondent has impressed us. The language of clause (o) of Section 108 of the Transfer of Property Act is clear in its mandate. It enjoys upon a tenant to use the property let out for a purpose for which the same was let out. Meaning thereby no tenant can use the premises for a purpose other than that for which the same was let out.
12. The decision of the Hon‟ble Supreme Court in Mohan Lal's case is clearly inapplicable. In said case the subject premise was let out for running the business of liquor vend but was used for the business of general merchandise.
13. With reference to the concept of allied and cognate business and expanding concept of departmental stores, it was held as under:-
"While respectfully agreeing with the said observations of Lord Diplock, that the Parliament legislates to remedy and the judiciary interpret them. It has to be borne in mind that the meaning of the expression must be found in the felt necessities of time. In the background of the purpose of rent legislation and inasmuch as in the instant case the change of the user would not cause any mischief or detriment or RFANo.862/1987 Page 4 of 6 impairment of the shop in question and in one sense could be called an allied business in the expanding concept of departmental stores, in our opinion, in this case there was no change of user which attracts the mischief of S.13(2)(ii)(b) of the Act. The High Court, therefore, was in error."
14. On the issue of injunction to be denied on account of availability of efficacious relief, suffice would it be to state that the relief pertaining to ejectment of tenant is entirely different than a relief to require the tenant to conform to the terms of the lease deed.
15. At this stage, we may note an allied contention urged by learned counsel for the respondent. Counsel urges that the lease was for 11 months and the contract between the parties came to an end after 11 months and thereafter his client is entitle to use the premises for any purpose. This argument has to be noted and rejected for the reason the commencement of every lease is a contract. Parties are bound by their contract except where law interdicts the contract.
16. The Delhi Rent Control Act, 1958 creates an embargo against the eviction of tenants where rent payable is less than Rs.3,500/- per month. Thus embargo prohibits the landlord from evicting his tenant except when a ground is made RFANo.862/1987 Page 5 of 6 available to him under Section 14 of the Delhi Rent Control Act, 1958.
17. A tenant paying rent of less than Rs.3,500/- per month acquires the status of a statutory tenant when the tenancy expires. The only right he gets is to continue to occupy the tenanted premises. The purpose of letting continues to be the same as per the agreement of the parties.
18. We allow the appeal and set aside the impugned judgment and decree dated 23.05.1987. We decree the suit by issuing an injunction against the respondent restraining him from carrying on any business from the tenant premises except the business specified in the lease agreement, Ex.PW1/2, i.e., jewellery business.
19. Cost is awarded in favour of the appellant and against the respondent all throughout.
PRADEEP NANDRAJOG, J J.R. MIDHA, J NOVEMBER 10, 2008 mk RFANo.862/1987 Page 6 of 6