DHARAM CHAND Vs. MATHURA DASS

JUDGEMENT

(1.) The tenant-petitioner has filed this revision petition against the order of the Appellate Authority, Patiala, dated March 18, 1980, whereby the order of the Rent Controller, dated Feb. 15, 1979, directing his ejectment was maintained.

(2.) The landlord-respondent sought the ejectment of the petitioner from the demised premises inter alia on the ground of change of user as contemplated under S. 13(2)(iii)(b) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter called the Act), which provides that if the tenant has used the building or the rented land for a purpose other than for which it was leased, he is liable to be ejected. It was averred in para 4 of the ejectment application that the tenant had changed the user of the shop, in dispute, without the written consent of the landlord and as such, he was liable to be evicted therefrom, and that he had started residing there along with his family in addition to his bakery business. The rent-note, dt. March 6, 1958, executed for eleven months, stipulating a monthly rent of Rs.30/-, is, Exhibit A. 1. In the written statement it was stated that the tenant had not changed the user of the demised premises, he had taken the premises for use and occupation as his shop of bakery and also for his use and residence in part thereof, a part of it is used by him as residence ever since he took the rented premises on rent, the right of residence was not prohibited by the terms of the lease, his living in the part of the rented premises was essential part of his business, he was an old man of 70 years infirm and of weak eye-sight, his wife helped him in the business of the bakery, he cannot carry on his trade and business without living in the demised premises and that he guards the premises, in dispute, by living there. It was also pleaded that he had been living in the demised premises for more than 19 years had during this period, the landlord had the knowledge of the same as he accepted the rent, never protested against such user, had always acquiesced in the user of the demised premises, and as such, he was estopped from taking this plea. In the replication filed on behalf of the landlord, it was stated that it was wrong that the shop, in question, was taken on rent by the tenant for residential purpose along with the business of bakery. The living of the tenant in a part of the rented premises was not an essential part of his business. It was wrong that his residence in the demised premises was required for guarding the building. It was also wrong that he had been living in the premises for the last 19 years and that it was also wrong that the landlord had acquiesced in the use of the premises, in dispute, for the residence of the petitioner. On the pleadings of the parties the learned Rent Controller framed the following issues :

(3.) The learned counsel for the petitioner, contended that no specific purpose was provided in the rent-note, Exhibit A. 1, nor was there any mention of any particular business to be carried on by the petitioner. the only recital therein is that the shop, in dispute, had been rented out to the petitioner at the rate of Rs.30/- per month. According to the learned counsel, from the evidence on the record, it has been amply proved that the tenant was residing therein from the very beginning as it was necessary for him to reside therein for doing his bakery business. The premises, in dispute, are L-shaped and therefore, the hind portion of the shop is being used for residence whereas the front portion is being used for running the bakery business. It was further contended that in any case, the major portion of the building was still being used for business purposes and it was only a small portion in which the tenant was residing and, therefore, there was no change of user of the building as such, i.e., the entire building as contemplated u/s. 13(2)(ii)(b) of the Act. The argument proceeds that the dominant purpose of the demised is still the carrying on of the business and, therefore, he is not liable to be ejected therefrom. In support of his contention, the learned counsel placed reliance on Sagar Mal v. Shree Seeta Ram, (1980) 1 Rent LR 33; Firm Himalayan Traders v. Narain Dass, (1966) 68 Pun LR 367; Rameshwar Dass v. Rishi Parkash, 1964 Cur LJ 513; Sant Ram v. Rajinder Lal, AIR 1978 SC 1601; Ram Niwas v. Union of India, 197 Ren CR 425 and M. K. Palaniappa Chettiar v. A Ponnuswamy Pillai, (1970) 2 SCC 290. He also referred to a judgment rendered by me in Civil Revn. Petn. No. 631 of 1976, (Amin Chand v. Gian Chand) decided on Aug. 25, 1981 : (reported in AIR 1982 Punj & Har 31). On the other hand, the learned counsel for the landlord-respondent, submitted that according to the evidence of the tenant himself, he started residing first in the demised premises and then he started his bakery business therein. His family consists of six person, i.e., two sons, two daughters, his wife and he himself. Even the marriage of one of his daughters was celebrated in the demised premises. Under the circumstances, it cannot be said that the dominant purpose is the carrying on of the bakery business; rather, according to the learned counsel almost the whole of the demised premises are being used for residential purposes though a very small portion thereof is being used as a shop. As the tenant never obtained any permission, either oral or in writing, for the change of the user of the demised premises, he is liable to be ejected therefrom u/s. 13(2)(ii)(b) of the Act. According to the learned counsel, though there is no specific purpose for which the demised premises, were rented out, but at the same time, what was rented out was a shop and, therefore, it would mean that it was for the purpose of carrying on of the business and not for residence. In support of this contention, the learned counsel placed reliance on Chhaju Ram v. Tulsi Das, (1977) 2 Ren CR 156 : (AIR 1977 NOC 222) (P & H) and Balak Ram v. B. N. Gupta, (1977) 2 Rent LR 83 (Him Pra).