ONKAR NATH JAGPAL Vs. DAROPTI DEVI

JUDGEMENT

(1.) The tenant is the revision petitioner before this Court. The petition for eviction was founded on a claim by the landlady that the tenant had changed the user of the property for purpose other than for the purpose it was let and on the ground of subletting. The ground of subletting itself had been brought through as a subsequent event during the pendency of proceeding that the tenant had sublet the premise to his brother-in-law Nanda in the year 1987. The petition was allowed accepting the contention of the land lady. The appeal by the tenant before the Appellate Court also confirmed the judgment of the Rent Controller. The tenant, who is aggrieved by the decisions of the Courts below, is the revision petitioner before this Court.

(2.) Learned Senior Counsel, Sh. Sarin, appearing on behalf of the petitioner-tenant would contend that the property had been granted on lease orally in the year 1975 and there had been no change in user of the premise at all. According to him, the property was let for his residential use as well as for the purpose of running a clinic as a doctor. The rent, which was originally Rs.span 600.00 was gradually increased and when the first floor was also constructed, it was raised to Rs.span 1200.00. According to him, there was no basis for the landlady to contend that there had been any change of user. Adverting to the reasoning of the Appellate Court that there had been a change of user, the learned counsel would contend that the burden of proof was always on the landlady to contend that there had been such a change without the written consent. In this case, admittedly, the tenancy was oral and there was nothing to show that the property had not been originally let out for residence as well as for running his clinic. The initial letting itself had been for both the purposes and the land owner cannot make an issue of the fact that when a local commissioner appointed, he also found that the tenant was having a clinic in the residential premises. A change of user in order that is actionable shall be only in situations where the initial letting was for a particular purpose and there had been a conversion without the concurrence of the landlady during the course of tenancy. In this case, according to the learned Senior Counsel, the initial letting itself was both for residential as well as for running a clinic and therefore, there was no case of change of user.

(3.) As regards the contention that the tenant had sublet the premises, learned Senior Counsel would contend that the alleged sub tenancy was in favour of his brother in law Sh. Nanda and he merely visited his premises now and then and he never lost exclusive possession of the property to his brother-in-law. Evidence had been let in by the landlady as regards the alleged subletting by showing a circumstance before the Court that the tenant had actually shifted to Delhi and in proof of the same, evidence was brought to the effect that he had surrendered his gas connection and had it shifted to Delhi and he had also obtained transfer certificate for his children by withdrawing them from school where they were studying at Chandigarh. The learned Senior Counsel would contend that the transfer of gas connection had no bearing at all that he had shifted to Delhi, for it was merely a case of tenant attempting to start a business in Delhi and he had never shifted to Delhi wholesale. The children were indeed taken out of Chandigarh for a short while but they did not last long and they came back to Chandigarh within a very short time. The fact that the children were put in some other school could not be a ground to suspect that the tenant had shifted base to Delhi, abandoning the property and putting it up in the hands of the sub tenant. The learned counsel would make an issue of the fact that the local commissioner who was appointed has brought out in his report that the tenant himself continued in possession, was also having a clinic in the same premises and he did not find the presence of the alleged sub tenant.