PRABHU DIAL Vs. VIJAY KUMAR

JUDGEMENT

(1.) OM Parkash Saraf owned a building which included the shop, which is subject of the dispute (hereinafter called the shop) located in Hanuman Gali at Karnal. The said shop had been let out for the business of goldsmith at monthly rental of Rs. 10.62, including house tax, to the petitioner by him. In the year 1971, Om Parkash Saraf sold the building, including the shop, to Vijay Kumar respondent. Therefore, the petitioner had become tenant of the shop under him. On August 7, 1972, Vijay Kumar made petition for ejectment of the petitioner from the shop on the grounds (a) that he had failed to pay the arrears of rent, (b) that he had materially impaired the value and utility of the shop, (c) that he was permanent nuisance to the occupiers of the buildings in the neighbourhood, and (d) that he had, without the consent of the landlord, i.e., for a purpose other than for which it was let out. The said petition was resisted by the petitioner. He admitted that the building, including the shop, had been purchased by the respondent from Om Parkash Saraf in the year 1971 and, as such, he was occupying the same as tenant at monthly rental of Rs. 10.62 under the respondent. He tendered the arrears of rent, costs and interest on the first date of hearing. He controverted the other allegations of the respondent and the petition was tried on the following issues : - -

(2.) Sub -clause (b) of clause (ii) of sub -section (2) of section 13 of the East Punjab Urban Rent Restriction Act (hereinafter called the Act) prohibits the tenant from using a building for a purpose other than that for which it had been let. The instrument of tenancy would be the best evidence to prove the letting purpose of premises. If there is no instrument of tenancy, the letting purpose can be determined on the evidence adduced in the case. Admittedly, the shop had been let out to the petitioner by Om Parkash Saraf, from whom the respondent had purchased the same along with the other portions of the building. There is nothing on record to show that any instrument of tenancy was reduced to writing. The petitioner did not state that there was any such instrument of tenancy. In para 2 of his examination -in -Chief he stated that he was working as goldsmith in the shop and did not use it for any other purpose, except for which it was let out to him The only inference that can be available from the said statement of the petitioner is that the shop had been let out to him for the business of goldsmith and he had been carrying on the said business in the shoo. The respondent has also sworn that the shop had been let out to the petitioner for the business of goldsmith. No doubt, his statement standing alone would not have been sufficient to determine the letting purpose because he had nowhere mentioned that he was present at the time when the shop had been let out to the petitioner by Om Parkash Saraf, but in presence of the positive admission made by the petitioner in his examination -in -Chief, referred to above, which leads to the inference and the only one, that the shop had been let out to him for the business of goldsmith, there can be no manner of doubt that the letting purpose of the shop was to run business of goldsmith there. There is ample evidence to show that the petitioner had, contrary to the aforesaid letting purpose, taken up residence in the shop. Sari Anil Kumar Sahni, Advocate (A.W. 2), who was once appointed to visit the shop, deposed categorically that he had inspected it at 8.45 P.M. on November 15, 1971, and that he had then found the father, the mother as well as son of the petitioner sleeping on separate cots in the shop. He went on to state that he noticed utensils, pieces of fuel wood, a hearth (chulha), and 3 boxes containing wearing appeared lying the shop. He added that he did not notice any implement of goldsmith there. The petitioner admitted that Shri Anil Kumar Sahni had inspected the shop and he was present at that time and he had opened the shop for allowing inspection to him. Thus, besides the other evidence which has been believed by the Rent Controller and the Appellate Authority, the deposition of Shri Anil Kumar Sahni leaves no room for doubt that the shop was being used for residential purpose and not for the business of goldsmith at the time when he inspected the same. That goes a lone way to show that the petitioner had taken up residence in the shop and thereby converted user of the same to a purpose different from the one for which it had been let out to him. The petitioner admitted that his father, when he was ill, had been residing and messing in the shop and his son had also been sleeping therein for attending to his father. The evidence led by the petitioner that he had been residing in the house of Ghanshyam Dass and had been using the shop as a goldsmith was rightly rejected by the Rent Controller as well as by the Appellate Authority. I see no reason to differ from them and the learned counsel for the petitioner has been unable to point out any infirmity in the conclusions arrived at by them in that respect.

(3.) The learned counsel for the petitioner, relying on the judgment given by this Court in Darshan Singh v. Jagdish Kumar, 1974 SCR 99, had argued that since the respondent did not plead or prove that he (the petitioner) had converted the user of the shop without written consent of the landlord, the petition for ejectment was bad and could not be allowed, I am unable to accept this argument. In Darshan Singh's case (supra), Jagdish Kumar and another had claimed his (Darshan Singh's) ejectment from the premises on the ground of personal necessity which was covered by sub -section (3) (a) of section 13 of the Act. All the three conditions, requiring ejectment of the tenant on the ground of personal necessity mentioned in sub -section (3) (a) of section 13 of the Act and stated in the judgment were within the special knowledge of the landlord and as such, Jagdish Kumar and another were expected and required to allege and prove the same before seeking eviction of Darshan Singh on the ground of personal necessity. But in the case in hand, the point as to whether the petitioner had obtained written consent of Om Parkash Saraf while converting the user of the shop into residential premises, especially when it was the case of the respondent that he (the petitioner) converted the shop into residential premises a month or so before he had purchased the same from Om Parkash, was within the special knowledge of the petitioner. Therefore, as required by section 106, Evidence Act, it was for the petitioner to plead and prove that he had obtained the written consent for conversion of the user of the shop into residential premises from Om Parkash or from the respondent. The respondent did allege in sub -para (b) of para 3 of the petition that the petitioner had converted the user of the shop into residential premises without his consent or permission. The petitioner did not plead, and he led no evidence, that he had even taken written consent of Om Parkash or of the respondent for using the shop for residential purposes. Indeed, this was never his case. His stand throughout had been that the shop had been let out to him for the business of goldsmith and he had been running the said business in it and had not been using it for residential purposes. As indicated above, he has failed to rebut the proof led by the respondent that there had been conversion of the user of the shop.