Punjab-Haryana High Court
Mrs. Santosh Tangri vs Ved Matta on 30 October, 2002
Equivalent citations: (2003)133PLR235
Author: Hemant Gupta
Bench: Hemant Gupta
JUDGMENT Hemant Gupta, J.
1. The present petition is by the landlord seeking ejectment of the tenant on the ground that tenant has changed the user of the premises and has also materially impaired the value and utility of the shop.
2. The brief facts out of which the present revision petition arises are that the respondent was inducted as a tenant in a shop at the monthly rent of Rs. 200/-. The terms of lease were reduced into memo dated 30.10.199. The petitioner has sought ejectment on the ground of arrears of rent, change of user as well as on the ground that the business of dry-cleaning has materially impaired the value and utility of the demised premises. However, the petitioner has restricted its case for seeking ejectment on the ground of change of user alone in the preset petition. The landlord has stated that the building was let out for the purpose of running of business of milk dairy, whereas the respondent has started the business of dry-cleaning in the tenant premises and thus, used the tenanted premises for the purpose other than for which it was let out. The tenant denied the allegations of the landlord including that of execution of memo of lease and that he is using the premises for dry-cleaning.
3. The landlord has produced A.W.I to prove that Verka Milk was being supplied to the respondent till 11.10.1992. On the other hand Ved Matta tenant has appeared as R.W.2 and admitted that initially he did the business of milk for 2-2-1/2 years and thereafter, he started running tea stall and since January, 1993 he has started dry-cleaning business in the said shop. He has stated that the landlord has not objected to dry-cleaning business by him but the landlord sought increase of rent, to which he did not agree and therefore, the landlord has sought the present petition.
4. The learned Rent Controller although held that the respondent is running dry-cleaning business in the said shop but such running of dry-cleaning business will not change the user relying upon Mohan Lal v. Jai Bhagwan (1988-1)93 P.L.R. 670 (S.C.).
5. However, the Appellate Authority distinguished the judgment of this Court in Daya Singh v. Shrimati Shanta Anand 1980 (2) Rent Law Reporter, 168 wherein ejectment was allowed when the premises which were given on rent for general sore and the tenant started dry-cleaning. However, the appeal was dismissed relying upon Mohan Lal's case (supra) as well as on Dhanpat Rai v. Lajpat Rai and Ors., (1989-1)95 P.L.R. 387, a judgment of this court where the change of business from Halwai to Kary-ana was held not amounting to change of user or where the premises let out for liquor were being used for general merchandise.
6. I have heard Shri Sumeet Mahajan, Advocate, learned counsel for the petitioner and Shri Sunil Chadha, Advocate, learned counsel for the respondent and with their assistance have gone through the records of the case.
7. I find that the reliance of the authorities below on the judgment of the Hon'ble Supreme Court in Mohan Lal's case to decline the ejectment of the tenant is not sustain-able in law. The courts below over-looked the fact that in the said judgment, the Hon'ble Supreme Court rejected the landlord's plea of ejectment on the ground of change of user holding that added use of the premises which was ancillary to the main purpose, will not amount to the change of user. However, the Hon'ble Supreme Court observed thus:
"9. 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 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 Section 13(2) (ii) (b) of the Act. The High Court, therefore, was in error."
8. In view of the said observation of the Hon'ble Supreme Court if the landlord is able to prove the mischief or detriment or impairment of the shop, then the tenant will not be able to save his eviction on account of change of user.
9. Renting of the premises for the milk dairy was not carrying any risk to the tenanted premises as running of the milk dairy does not involve any use of inflammable material or machinery which are necessary for running of a dry-cleaning business. For any dry-cleaning business not only special machines are to be installed but also highly inflammable products are used for dry-cleaning of the clothes. Such use of inflammable material is likely to cause detriment and impairment of the value and utility of the shop which was not the intention of the landlord when the building was let out for use of the milk dairy. The running of business of a dry-cleaning is neither allied to the main business nor ancillary to the business of milk dairy but is totally different and cannot be compared with the running of the milk diary. In these circumstance, this court has in Daya Singh v. Shrimati Shanta Anand 1980(2) RLR 424 has held that use of a building for running of a dry-cleaning shop amounts to change of user.
10. A Full Bench of this Court in Sikander Lal v. Amrit Lal (1984)86 P.L.R. 1 has held that where the alleged subsequent use can be held to be a part of the specific purpose or it is merely ancillary to the specified purpose then it would not imply any change of user. It was further held that if the added use of the premises is ancillary to the main original purpose even then it would be deemed to be within the terms of original lease. The Full Bench concluded that although some leverage is given to the tenant to use the said premises which may be deemed as part of or ancillary to the specified business it would not give them a licence to set up all business connected or allied to the original one. It was held as under:
"13. However, a strong note of caution must be sounded in the aforesaid context. As is inevitable and indeed evidenced by the mass of authority on the point it is not possible always to draw a clear-cut razor sharp line betwixt what is a part or ancillary to the specific original purpose and what is not so. Cases have, and inevitable could continue to arise which would slightly overlap and trespass from one field into another which would call for close judicial expertise for determining whether they primarily fall in one category or the other. What deserves highlighting negatively is that the concept of bearing a part of being ancillary to the specific original purpose cannot be extended to all and every allied purpose thereto. This is easily highlighted by adverting to cases where leases have been given for a particular business or trade named in the deed. Whilst some leverage is given to the tenant to use the said premises for purposes which may be deemed as a part of or ancillary to the specified business, it would not give them a licence to set up all business connected or allied to the original one. The rationale for his is that the chain of causation for saying that a business or trade is allied or connected can be so expendable as to virtually swamp or override the original business or trade for which the premises may have been specifically leased. Apart from this being patently sound on principle, it appears to me that their Lordships in Maharaj Kishan Kesar's case (supra) frowned on any further extension of the rule to all allied businesses. The Rent Controller therein had, in terms, opined that the setting up of the petrol pump on the motor workshop premises was an allied business and, therefore, could not said to be a business different from the original one. Apparently, disapproving any such extension their Lordships, after quoting the finding of the Controller, observed that they would not call the business of sale of petrol as an allied business and, in terms, held it to be a part of the motor workshop business and, therefore, held that it involved no infraction of the statute. Therefore, both on principle and on binding precedent it emerges that the specified original purpose cannot be extended by adding to it any and every allied purpose thereto, and the sarne must be confined within the limitation of being either a part and parcel of, or ancillary to, the original purpose"
10. In Gokal Chand v. Romesh Chander and Anr. (1992-1)101 P.L.R. 545, the learned Single Judge of this Court has taken a view that if the demised premises have been leased for a specific purpose, then the subsequent use of the premises not ancillary to specific original purpose, without written consent of the landlord, amounts to misuse of user.
11. In Ram Gopal v. Jai Narain and Ors. 1995 Suppl. (4) Supreme Court Cases 648, Hon'ble Supreme Court upheld the eviction of the tenant when the tenant installed Atta Chaki and Oil Kohlu in a premises meant for running of a shop.
12. Recently, the Hon'ble Supreme Court has considered the case law pertaining to the change of user in its judgment reported as Jagdish Lal v. Parma Nand (2000) 5 Supreme Court 44 = AIR 2000 Supreme Court 1822 and 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 but keeping in view 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. The Hon'ble Supreme Court has held:
"18. On a consideration of these decisions, it comes out that where the new business started by the tenant in the premises let out to him was an allied business or a business which was ancillary to the main business, it would not amount to change of user. It is true that where a premises is let out for commercial purposes, carrying on of a new business 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 busines's 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. Where local laws provide a specific prohibition in respect of the use of the premises under the rent legislation and that provision has been interpreted in a particular manner by the High Court consistently, it would not be proper to disturb the course of decision by interpreting that provision differently."
13. The learned counsel for the respondent contended that the premises are being used for commercial purpose alone for which it was let out. There are no material alteration in the building so as to use the premises for business of dry-cleaning and thus, the Court below was right in law in dismissing. He also relied upon Mohan Lal's case (supra) as also upon Gurdial Batra v. Raj Kumar Jain, (1989-2)96 P.L.R. 313 (S.C.).
14. The argument of the counsel for the respondent is wholly misconceived. As discussed above the business of dry-cleaning has no linkage with the business of milk dairy for which the premises were let out. The statute permits the change of user only with the written consent of the landlord. Therefore, acquiesence has no meaning. Reference may be made to P. John Chandy and Co. (P) Ltd. v. John P. Thomas (2002) 6 Supreme Court Cases 90, Gurdit Singh v. Raj Kumar 2002(2) SCC 445 and Rai Chand Jain v. Chander Kant AIR 1991 SC 794.
15. Since the business of dry-cleaning cannot be said to be allied or ancillary to the business of milk dairy, therefore, the finding recorded by the courts below that the tenant is not liable to be evicted on account of change of user suffers from material illegality and irregularity and thus, not sustainable in law.
16. After arguments in the above case were heard on 25.10.2002 and judgment was reserved, the respondent moved an application for brining on record subsequent events. The respondent has stated in the said application that he has stopped using the premises for the purpose of dry-cleaning in the year 1995 and has started using the same for selling gift cards, posters, stationery in the demised premises in the name of Matta Gallery. Said application was taken on record. The learned counsel relied upon Jagdish Lal v. Parma Nand , AIR 2000 SC 1822 to contend that where the tenant has stopped misuse and reverted to the original use or to the business allied to such business then the tenant cannot be evicted.
17. Learned counsel for the petitioner submitted that assuming the averments in the application to be correct, for the sake of argument, still the respondent cannot escape from the eviction in view of the fact that he has continued the misuse for almost 12 years. The petitioner also submitted that the cause of action to seek ejectment arises on the date of filing of the petition. The rights of the parties are to be determined as on the said date. It was argued that the delay in final adjudication will not defeat the right of the landlord to seek ejectment. The cause of eviction being arisen to the landlord, such right of eviction cannot be defeated by reverting to the original use or for allied purpose.
The reliance of the tenant on the judgment of Jagdish Lal's case (supra) is not tenable as much as the tenant in the said case reverted back to the original business after carrying out the change of business for a short period and had been continuing with the original business for long years. The Supreme Court set aside the eviction in the ends of justice having rejected other grounds of eviction. The petitioner placed reliance on the maxim acts curia neminem gravibit and cited Atma Ram Mittal v. Ishwar Singh Punia (1989-1)95 P.L.R. 143 (S.C.). The Hon'ble Supreme Court in the said case was considering whether a suit filed within the exemption period from the operation of the Rent Act can be continued after the expiry of exemption period. The Court held thus:
"8. it is well-settled that no man should suffer because of the fault of the Court or delay in the procedure. Broom has stated the maxim "actus curia neminem gravibit" an act of Court shall prejudice no man. therefore, having regard to the time normally consumed for adjudication the 10 years exemption or holiday from the application of the Rent Act would become illusory, if the suit has to be filed within that time and be disposed of finally. It is common knowledge that unless a suit is instituted soon after the date of letting it would never be disposed of within 10 years and even then within that time it may not be disposed of. That will make the 10 years holiday from the Rent Act illusory and provide no incentive to the landlords to build new house to solve problem of shortages of houses. The purpose of legislation would thus be defeated. Purposive interpretation in a social amelioration legislation is an imperative irrespective of anything else.
18. In Goya Prasad v. Pradeep Shrivastava AIR 2001 SC 803 the Hon'ble Supreme Court while considering the case for eviction on the ground of bona fide need of the landlord held that the crucial date of deciding bona fides of the need is date of application for eviction. It may be beneficial to reproduce para 11 of the judgment:
"We cannot forget that while considering the bona fides of the need of the landlord the crucial date is the date of petition. In Ramesh Kumar v. Keshon Ram, 1992 Suppl (2) SCC 623: (1992) AIR SCW 336: AIR 1992 SC 700) a two Judge Bench of this Court (M.N.Venkatachalla, J. as the then was , and N.M.Kasliwal, J.) pointed out the normal rule is that rights and obligations of the parties are to be determined as they were when the lis commenced and the only exception is that the Court is not precluded from moulding the reliefs appropriately in consideration of subsequent events provided such events had an impact on those rights and obligations. What the learned Chief Justice observed therein is this (para 4):
"The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of a fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the Court is not precluded from taking a cautious cognizance of the subsequent changes of fact and law to mould the relief."
19. In view of the said judgments, I do not find any ground to decline ejectment presuming that the tenant has reverted to the business of general merchandise during the pendency of this petition in this Court.
20. Consequently, the present petition is accepted. I grant two months time to tenant to vacate the demised premises provided the tenant furnishes an undertaking before the trial Court within one month from today undertaking to hand over the physical vacant possession of the premises to the landlord and pay the entire arrears of rent and continue to pay monthly rent till eviction of building, failure of which entitle the landlord to the execution of the order.