CHHAJU RAM Vs. TULSI DASS AND ANOTHER

JUDGEMENT

(1.) This Revision has been filed by Chhaju Ram, landlord, against the judgment of the Appellate Authority under the East Punjab Urban Rent Restriction Act, 1949 (herein -after referred to as the Act), dated February 7, 1973.

(2.) Briefly, the case of the petitioner is that he purchased the shop in dispute from Harish Chander on August 14, 1968. Respondent No. 1, Tulsi Dass, was a tenant in the premises in dispute under Harish Chander on a rent of Rs. 24/ - per mensem. Consequently, he became tenant under him after purchase of the property in dispute. The petitioner filed the application for ejectment of the shop inter alia on the ground that he had started using it for a purpose other than for which it was let and that he had sublet it in favour of Khan Chand respondent No. 2, without his consent in writing. Tulsi Dass contested the application and stated that he was a partner in the firm known as 'Moti Ram Ram Lal', which had been carrying on the business of purchase and sale of cloth at Rewari at the inception of the tenancy in his favour by Harish Chander and that the firm had been using the shop for storing the cloth since then. He denied that the shop had been sublet by him to Khan Chand. Some other pleas were also taken but they are not necessary for the disposal of the present petition, as those were not pressed before the Appellate Authority. The Rent Controller held that there was no change of user and that the tenants had not ceased to occupy the shop for a continuous period of four months. Consequently he dismissed the petition. Chhaju Ram landlord, went up in appeal before the Appellate Authority who affirmed the findings of the Rent Controller and dismissed the appeal. He has come up in a revision petition against the judgment of the Appellate Authority to this Court.

(3.) The only point urged before me is that respondent No. 1 had been using the shop in dispute for storing the foods and that will amount to change in the user of the property as he had taken the premises for the purposes of running a shop. It is an admitted case of the parties that the sale of cloth was not being carried on in the shop in dispute by any member of the firm Moti Lal Ram Lal. A Local Commissioner was appointed by the Rent Controller who inspected the shop on April 8, 1969. In his report he has stated that the sale of cloth was not conducted in the shop as there was neither a cash box nor the cash memos nor any of the form necessary under the Shops Act. There was also no gaddi (seat for the salesman) in the shop. The four walls, the roof and the aalas inside the shop were all dust stricken and it appeared that no one had been regularly sitting therein and that it was not being cleaned regularly. About 50 -60 thans of coarse cloth only were lying, in the shop. The Commissioner also observed that he was of the firm view that the shop in dispute remained closed and not being used for business purposes. The witnesses produced by the petitioner also deposed about the aforesaid facts. After going through the report and the statements of the witnesses, it is clearly established that the premises in dispute were being used as a godown by respondent No. 1. This conclusion has not seriously challenged by the Learned Counsel for the respondent. The only question that arises for determination is as to whether in the aforesaid circumstances it can be held that there was change of user regarding the shop in dispute. In the rent note, it is mentioned that the premises had been taken as a shop. The word 'shop' has not been defined is the Act, in Aiyer's Law Terms and phrases, sixth Edition, the 'shop' is described as 'a room or a place or a building where goods are sold'. This word has been been defined in Stround's Judicial Dictionary, Fourth Edition, Volume V, as 'a place where a retail trade is carried on'. The definition of word 'Godown' in Aiyer's Law Terms and Pharases is 'a warehouse'. The Learned Counsel for the respondent argues that in a shop the goods are stored and sold. According to him, in case goods are stored in a shop, it cannot be said that there is a change of user. In support of his contention, he has placed reliance on the observations in Civil Revision No. 698 of 1959 (Kishan Lal v/s. Madan Gopal) decided on August 12, 1960, and Civil Revision No. 237 of 1966 Chhabil Dass v/s. Fateh Chand C.R. No. 237 of 1965, decided on November 25, 1966. In the fatter judgment, Mehar Singh C.J. placed reliance on Kishan lal's case. No doubt, the observations in the aforesaid cases help the respondent. On the other hand, the Learned Counsel for the petitioner has referred to Civil Revision No. 645 of 1961 (Balwant Singh v/s. Brij Mohan, 1979 R.C.R. 692,), 1975 R.C.R. 692) decided on March 16, 1962. In that case, the shop was let for a factory of handlooms and subsequently the manual power was replaced by the electric power. It was observed by Duiat, J., that while the shop was let, it was mentioned that the purpose of letting was to set up Khaddis be handlooms which was a different kind of activity. Consequently, the learned Judge held that there was a change of user. The Learned Counsel for the petitioner has also referred to another Civil Revision No 654 of 1962 (Pandit Ram Swarup v/s. Om Parkash C.R. No. 913 of 1972) Cr. No. 913 of 1972.) decided on September 6, 1963, where the tenant was carrying on the business of electric goods and paints. Subsequently, he abandoned, the old business and started using the premises as a Halwai Shop. Dulat, J., who decided the case, held that there was change of user of the property After perusing the aforesaid judgments. I find that the question involved in the present case is not free from difficulty. The question is also of such a nature which may very often arise. In the circumstances it is desirable that the case may be referred to a Division Bench. The papers of this case may be placed before my Lord, the Chief Justice, for appropriate orders.