DR. DEO PARKASH GUPTA Vs. SHRI SURRINDER PERSHAD

JUDGEMENT

(1.) DEO Parkash Gupta instituted the present application under S. 14 (1) (a) and (c) of the Delhi Rent Control Act for ejectment of Surinder Pershad respondent, his tenant, on the ground that he had not paid any rent since 22nd October, 1958, in spite of a notice of demand dated 7th March, 1959, served on him on 10th March, 1959, that the premises being shop had been let to him not for residence, and that he had begun to use it without obtaining his permission in writing for residence as well, a purpose other than for which it had been let to him. He further alleged that notice dated 7th March, 1959, also required him to stop this change in user of the shop but to no effect.

(2.) SURINDER Pershad tenant -respondent paid the arrears of rent in due time and resisted the claim of the applicant based on change in use and in doing so pleaded that no valid notice as required under S. 14 (b) of the Delhi Rent Control Act had been served upon him. This defence weighed with the Rent Controller who dismissed the application. The landlord appealed to the Rent Control Tribunal who held that the notice served on the tenant by the landlord was valid in law. The case was remanded to the Rent Controller for disposal on merits. The only point that was urged before him in support of the applicant's claim for ejectment of the respondent -tenant was that the latter had started residing in the shop which was detrimental to the interest of the applicant -landlord. The Rent Controller found that the shop was taken on rent by the respondent not for residence as was clear from the rent note Exhibit A. X. and that he was using a portion thereof for his residence as well. He also held that the Municipal Committee, Delhi while permitting the landlord to build the three storeyed building which included the shop in dispute laid down that the ground and mezzanine floors would be unfit for human habitation under section 116 of the Punjab Municipal Act - In his view the tenant's residence in a part of the shop only did not amount to the change in user and the same was also not detrimental to the interest of the landlord particularly when the local authority had not taken any step against him on the ground of the tenant residing in a part of the shop. As a result the landlord's application for ejectment was dismissed and the parties were left to bear their own costs The landlord felt aggrieved from the above order and preferred an appeal which was also dismissed by the Rent Control Tribunal. He has come up in second appeal to this Court.

(3.) THE learned counsel for the appellant strenuously contended that the respondent's residence in a part of the shop amounted to change in the user and this change was detrimental to the interest of the landlord. In this connection he brought to my notice that subsequent to the filing of the appeal the Delhi Municipal Corporation prosecuted the appellant under S. 347 read with the Twelfth Schedule of the Delhi Municipal Corporation Act and the Magistrate had fined him Rs. 5/ - twice on 30th January and 13th March, 1964, for infringement of the terms and conditions on which he was permitted to erect the building of which the shop in question formed the part. Section 347 of the Delhi Municipal Corporation Act corresponds to section 116 of the Punjab Municipal Act. The learned Rent Control Tribunal while holding that residence of the respondent -tenant in a part of the shop was not a change in the user relied on the case, Manohar Lal Chopra v. Mr. Bal Raj Arora,, (1953) 55 P.L.R. 295 which laid down: A tenant who used the premises for business purposes but used a small portion of it for his residence in order to carry on his business more efficiently cannot be said to have used the premises in a manner different from that for which the business premises were let. The learned Judge while laying down the above proposition of law observed: The fact that the premises contained a kitchen and a bathroom evidently showed that a small portion of the premises could be used by a tenant for the purpose of actually residing there. Though the premises have been used since 1935 in the manner in which they had been used, up till now no really serious action has ever been contemplated on the ground that they have been used in a manner not authorised either by the lease from Government to the original perpetual tenants or by the present landlord to the present tenant. It is in the evidence of Mr. Shanti Chand, an Assistant in the Land and Development Office, New Delhi, that no one has so far been evicted on the ground of his residence in his shop. It will thus be seen that the facts of the instant case are distinguishable from the facts of the above case. Here, the Delhi Municipal Corporation had in fact taken an adverse notice of the tenant's residence in the shop contrary to the conditions on which the landlord was allowed to erect the building and prosecuted the landlord with success in the Court of the Magistrate First Class, Delhi. The learned Rent Control Tribunal also referred to the case, Nand Lal v. Dr. Gurbakhsh Rai, (1962) 64 P.L.R. 601, in support of his conclusion, where it was held: A tenant who cooked his meals in a small portion of the shop cannot be said to have materially impaired the value or utility of the shop merely because there are some marks of smoke on the walls. In the present case the tenant -respondent is not merely cooking his meals in a part of the shop but is using the same for his residence, hence Nund Lal's case cannot be a true guidance for determining the dispute between the parties therein. The action taken by the Delhi Municipal Corporation against the appellant for change in the user of the shop no doubt shows that this change was detrimental to the interest of the landlord and that being so it furnished a good ground for the landlord appellant to claim ejectment of the tenant -respondent.