SATISH KUMAR Vs. SOM PARKASH RISHI

JUDGEMENT

(1.) THE tenant who was sought to be evicted on several grounds, including the ground that the tenant had changed the premises from residential to non -residential survived the action at the first court when it held that it was not established that the property was let only for residential purpose. The Rent Controller also observed that it was at all times shown to be used for commercial purpose and that in any event, the landlord was barred by acquiescence and estoppel from complaining of change of user. The Appellate Authority reversed the decision and ordered eviction only on the ground that the property had been shown to be used for residential purpose and that there can be no question of acquiescence or estoppel for a change that has not been authorized in writing. The Appellate Authority observed that there was no scope in law for authorising change of user otherwise than in writing and ordered eviction. The other grounds of eviction are not required to be stated since both the courts held that other grounds which the landlord had pleaded for eviction have not been established. The respective Senior Counsel appearing on behalf of the tenant and the landlord would stay confine only to ground of change of user.

(2.) THE learned Senior Counsel appearing on behalf of the landlord would argue that the property admittedly had not been let out by the person who had filed the petition, but they themselves were purchasers from the original landlord and the original landlord had not restricted the use for residential purpose and that the property was always being used only for the purpose for which it was let. The Senior Counsel would make an issue of the fact that there was no written note and there was also no proof led by the landlord that the property was let out only for residential purpose. The counsel also read to me at length the observations of the Rent Controller that the landlord had not set out the date when the change of user was made and that further even in previous petition filed earlier, there had been no reference to the fact that the property was put to use only for the residential purpose. The counsel would support the findings of the trial court that there was no proof of change of user of the building and the Appellate Authority had wrongly made reference to the fact that the property had been put to a different use than the purpose for which it was let. The counsel would refer to he fact that the property was referred to as a godown which in the nature of things is a non -residential purpose and relied on the judgment of the Supreme Court in Shabir Ahmad Versus Sham Lal, 2002 AIR(SC) 1036that considered the issue of lease of a shop -cum -flat (SCF) and held on the facts brought before it that it was a commercial building and it could not be treated as a residential purpose only because there was an expression 'flat'.

(3.) THE Senior Counsel appearing on behalf of the landlord points out with reference to the plan as approved by the Chandigarh Administration at the time of allotment that the demised property is a shopcum -flat comprising of the basement which is described as a godown, a first floor that comprises of a hall, a kitchen, a bathroom and latrine, including and office space and the second floor which is referred to as workers room. What was rented out was the only first floor and no part of the building at the ground floor or the second floor was let out. The counsel would state that the place in the first floor shown as the office was a manner of use that was possible but what was constructed and let out was only a hall with kitchen and the toilet facilities, as mentioned above. The counsel would also refer me to the communication elicited under the RTI Act from the estate office that the particular property demised could not be used for any commercial activities, like opening of shop and display of sale and purchase of goods. The Senior Counsel would would also read to me the averments of the petition itself which clearly explained that the property let out was a residential one and there was not even a dispute in that regard. The counsel would refer me the voters list during the relevant period when the entire family members of the petitioners were entered as residing there including the wife and the daughter. The entries showed that it could not have been used as a godown for a commercial purpose. The counsel would also read to me the evidence of witnesses cited by the tenants who had spoken about the fact that the tenant's family had shifted their family from the demised property to Panchkula, meaning thereby that they were using the property for a residential purpose they had later changed the character of the property for sale of tea at the premises.