Punjab-Haryana High Court
Kamal Kumar vs Dev Raj on 9 August, 1990
Equivalent citations: (1990)98PLR525
ORDER S.S. Sodhi, J.
1. The challenge in revision here is to the impugned order of the appellate authority directing the ejectment of the tenant-Kamal Kumar, on the ground of change of user.
2. The demised premises consist of a shop and a room at the back. According to the landlord this shop had been let out to the petitioner Kamal Kumar for running his Karyana business. The plea of the tenant, on the other hand, is that while the room in the front was for Karyana business, the one behind was for storing fodder and this was the settlement between the parties.
3. In dealing with this matter, it would be pertinent to note, at the very outset, that as per the statement of the landlord--Dev Raj himself, a rent note was executed, which was attested by his two witnesses A. W.-2 Bhajan Singh and A. W. 3 Chhota Ram. This rent note is however, not forthcoming. The plea of the landlord for change of user thus rests solely upon the oral testimony of witnesses examined in this case. According to A. W. 1 Dev Raj and his witnesses not only fodder, but dung-cakes too were stored in the shop. Further the tenant is also said to have been tethering his cattle there. There is, however, no plea regarding the tethering of cattle or dung-cakes being stored in the shop. This part of the landlord's case has thus clearly to be disregarded as being an after-thought.
4. In so far as the storage of fodder is concerned, the tenant admits that he also carries on business in sale of fodder, but stated that his business is done from the room behind the shop, though he also admitted that some fodder had been stored by him in his shop alongwith the articles of Karyana. The question thus arises, does this constitute change of user ?
5. Recently in Gurdial Batra v. Raj Kumar Jain, (1989-2) 96 P. L. R. 313 (S. C.), where a shop had been let out for use as a cycle repair shop and sale of T. V. sets, was also carried on there for some time, it was held that this did not constitute a change of user within the meaning of Section 13 (3)(ii)(b) of the East Punjab Urban Rent Restriction Act, 1949. It was observed in this behalf, "Ordinarily, as long as the interests of the landlord is not prejudiced, a small change in the user would not be actionable." This precedent aptly fits the case here. Keeping of some fodder along with the articles of Karyana has not even been suggested to prejudicially affect the interests of the landlord in any manner. This thus cannot justify the ejectment of the tenant.
6. The appellate authority had also placed reliance upon the testimony of A.W. 2 Bechan Singh to the effect that the petitioner open his shop for only 2 to three hours in a day and then sits and plays cards nearby. The fact that this is how he carries on business, can by no means, be construed to mean that he is using the shop for a purpose other than that for which it had been let out to him.
7. Faced with this situation, counsel for the respondent-landlord sought to press in aid the judgment of this Court in Des Raj v. Shyam Lal, (1980) 82 P.L.R. 647, where, it was held that use of a shop as godown amounted to change of user. This can clearly be of no avail to the respondent, as there is no material on record to establish that the demised, as there is no material on record to establish that the demised premises are being used by the petitioner merely as a godown.
8. In the totality of the circumstances of the case and the evidence on record, there can be no escape from the conclusion that the appellate authority clearly fell in error in holding the petitioner tenant liable to ejectment from the shop on the ground of change of user.
9. The impugned order of the appellate authority is accordingly hereby set aside and this revision petition is accepted with costs. Counsel fee Rs. 500/-.