Full Judgment Text
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CASE NO.:
Appeal (civil) 2900 of 2001
PETITIONER:
M/S. ATUL CASTINGS LTD.
Vs.
RESPONDENT:
BAWA GURVACHAN SINGH
DATE OF JUDGMENT: 20/04/2001
BENCH:
D.P. Mohapatra & Shivaraj V. Patil
JUDGMENT:
Shivaraj V. Patil J.
Leave granted.
L...I...T.......T.......T.......T.......T.......T.......T..J
The issue that has come up for consideration and
decision in this appeal is whether use of one room to
attend some office files at home in a building leased for
residential purpose, renders a tenant liable for his
eviction from the building under Section 13(2)(ii)(b) of the
East Punjab Urban Rent Restriction Act, 1949.
This appeal is filed by the tenant who has suffered an
order of eviction under Section 13(2)(ii)(b) of the East
Punjab Urban Rent Restriction Act, 1949 (for short the
‘Act). The respondent herein, the landlord, filed a
petition for eviction of the appellant from the premises on
the ground of non-payment of arrears of rent and using the
premises for the purpose other than residence stating that
the change of user had been effected without written consent
of /the landlord. However, during the pendency of the
proceedings, the landlord did not press the eviction
petition on the ground of non-payment of arrears of rent.
The Rent Controller ordered eviction of the appellant from
the premises accepting that he was using a part of the
premises as office contrary to the purpose stated in the
lease-agreement. The appellant filed the appeal before the
appellate authority challenging the order of the Rent
Controller. The appellate authority dismissed the appeal
agreeing with the Rent Controller. The appellant approached
the High Court by filing a revision petition questioning the
validity and correctness of the order of the appellate
authority confirming the order of eviction passed by the
Rent Controller. The High Court by impugned judgment and
order upheld the order of eviction by dismissing the
revision. Hence the appellant has filed this appeal.
Dr. A.M. Singhvi, learned Senior Counsel appearing for
the appellant, urged that the order of eviction passed
against the appellant is patently unsustainable both on
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facts as well as in law; merely because in a six bed room
house, in one of the rooms, certain office files brought
home were disposed of; a table and a chair was put in the
room for that purpose where even the children and members of
the family used that room for study, did not change the
classification or character of the premises from residential
to non-residential; the interpretation placed on Section
13(2)(ii)(b) of the Act by the authorities and the High
Court was too narrow and restricted, running contrary to the
very object and purpose of the provision.
Shri Gopal Subramanium, learned Senior Counsel appearing
for the respondent, made submissions supporting the order of
eviction passed against the appellant. He contended that
the concurrent findings of facts recorded by all the courts
below do not call for any interference at the hands of this
Court in exercise of jurisdiction under Article 136 of the
Constitution. He emphasized on the terms of the agreement
in particular inviting our attention to the words that the
premises was to be used for the purpose of residence only;
since one room was used as office, Section 13(2)(ii)(b) was
attracted for eviction of the appellant.
We have considered these submissions of the learned
counsel for the parties. It will be useful to notice a few
provisions of the Act which will have bearing in deciding
the issue that has arisen for our consideration.
Section 2. Definition - In this Act, unless there is
anything repugnant in the subject or context :-
a) ....................
b) ....................
c) ....................
d) Non-residential building means -
i. a building being used solely for the purpose of
business or trade;
ii. a building let under a single tenancy for use for
the purpose of business or trade and also for the purpose of
residence.
Explanation - For the purpose of this clause, residence
in a building only for the purpose of guarding it, shall not
be deemed to convert a non-residential building to a
residential building-in Chd.]
e) .................
f) .................
g) residential building means any building which is
not a non-residential building;
h) Scheduled building means a residential building
which is being used by a person engaged in one or more of
the professions specified in the Schedule I to this Act,
partly for his business and partly for his residence.
Section 13. Eviction of tenants -
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(1) .....................
(2) A landlord who seeks to evict his tenant shall apply
to the Controller for a direction in that behalf. If the
Controller after giving the tenant a reasonable opportunity
of showing cause against the application, is satisfied:
i) .................
ii) That the tenant has after the commencement of this
Act without the written consent of the landlord -
a) transferred his right under the lease or sublet the
entire building or rented land or any portion thereof, or
b) used the building or rented land for a purpose other
than that for which it was leased, or
iii) that the tenant has committed such acts as are
likely to impair materially the value or utility of the
building or rented land, or
Since finding is recorded as to the change of user of
the building on the so called admission of the appellant in
the written statements, it is necessary to notice the
relevant pleadings. Para 6 of the original eviction
petition reads :-
That the premises has been let out for residential
purposes only. That the respondent has started using the
premises recently for purposes other than residence.
The reply to the said paragraph in the written statement
is that:
That the contents of para 6 are admitted that the
premises was let out for the purposes of residence but a
part of the premises is being used for office purposes also
as provided in the agreements. It is denied that the
respondent has started using the premises for purposes other
than residence. It is submitted that Sh. R. K. Aggarwal,
the Managing Director of the company is living in the
demised premises with his family from the inception of the
tenancy and is still living there.
(emphasis supplied)
Para 6 of the plaint was amended and after the amendment
it reads:-
That the premises has been let out for residential
purposes only. That the respondent has started using the
premises recently for purposes other than residence. It is
further submitted that change of user has been effected by
the respondent without any written consent of the petitioner
and after the commencement of the Act.
Amended written statement in relation to the same is to the
following effect:-
That the contents of para no. 6 are wrong and hence
denied. The respondent is not using any part of the
building for the purpose of the office and has never used it
as such. As a matter of fact, in one room, the respondent
has kept office table and office equipment where he brings
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office work for its disposal. It cannot be termed as an
office because no client comes there to the respondent.
During the time the M.D. of the respondent company is away
to his factory or office, the said office room is used as
study room by his family members. The entire demised
premises has been used continuously for the purpose of
residence only and for no other purpose.
(emphasis supplied)
The respondent in para 6 of the plaint, both original as
well as amended, did not give particulars as to the change
of use of the premises including from what period there was
change in the use of the premises. As is evident from para
6 of the written statement both before and after the
amendment the appellant specifically denied that he had
started using the premises for the purposes other than the
residence. It is explained that the Managing Director of
the company was living in the demised premises with his
family members; in one room an office table and office
equipments were kept for disposal of office work at home;
the same room was being used as study room of his family
members and that the premises has been continuously used for
the purpose of residence only and for no other purpose. We
fail to understand as to how it can be said or understood
that the appellant had admitted the case of the respondent
in regard to the change of user of the building for the
purpose other than that was leased. To get an order of
eviction under Section 13(2)(ii)(b) of the Act a landlord
has to plead and establish by proper evidence that the
tenant has been using the building for a purpose other than
that for which it was leased. It is yet a different issue
as to whether use of one room in big building by the
appellant for disposal of office files or for study of
family members can be said to a change in use of the
building for a purpose other than the residential.
In support of the eviction petition, the respondent has
deposed that he let out the premises on 1.5.1988 through
Exbt. P/1 and he never allowed the change of user of the
premises from residential to non-residential and that the
change of user came to his knowledge in the year 1990; he
had not mentioned in his petition that any specific portion
of the building was being used as office; he did not see
any person working in the office but while he was standing
outside the building, he saw some visitors; he admitted
that the appellant used to have a regular office in SCO NO.
42, Sector 7-C, Chandigarh. The said office was closed
somewhere in the year 1996. It may be noticed that the
building was taken on lease by the appellant-company for the
residence of its Managing Director; the address of the
office of the appellant- company was given as SCO No. 42,
Second Floor, Sector 7-C, Madhya Marg, Chandigarh in the
eviction petition itself filed before the Rent Controller.
It appears the appellant was served with the notice of the
proceedings on the same address. The statement of the
respondent that the appellant was using one room in the
building as office since 1990 and that the office at SCO No.
42, in Sector 7-C, Chandigarh was closed in 1996 clearly
indicates that the office of the appellant company was not
in the building in question when the petition for eviction
was filed. In para 27 of its judgment, the appellate
authority has referred to the statement of R.K.Aggarwal,
(RW-1) (the Managing Director of the appellant-company). In
his deposition, he has stated that he is residing in the
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house in question alongwith his wife, mother, two sons and
their wives and children and the house is being used purely
for residential purposes from the time it had been taken on
rent; that he was keeping some important files relating to
affairs of the company where he does some work relating to
the files after office hours; no board or nameplate or
hoarding of the company is displayed in the house in
question; the office of the company was in House No. 2163,
Sector 21-C Chandigarh from where it was shifted to SCO No.
84-85 Sector 17-C, Chandigarh. Thereafter, it was again
shifted to SCO No. 42, Sector 7C, Madhya Marg, Chandigarh
and at present, the office is located in the factory
premises of the company, Nalagarh. The Rent Controller as
well as the appellate authority expected the appellant to
lead negative evidence to prove that part of the building
was not being used as office. This approach is opposed to
settled principle of law in regard to discharge of burden of
proof. The authorities have proceeded to accept the case of
the respondent mainly on the basis of so-called admission
said to have been made by the appellant in the written
statement. A reading of statement made in written statement
in the context has to be integrated and not truncated. If
para 6 of the written statement is read as a whole instead
of picking up one sentence or part of it, there would be no
scope to say that the appellant admitted the case of the
respondent as to change of user of the building. There is
no other evidence to support that there has been a change of
user of the building. In our view, the Rent Controller as
well as the appellate authority committed a manifest error
in proceeding to order eviction of the appellant in the
absence of evidence supporting the ground of change of user
of the building. The findings in the absence of necessary
pleading and supporting evidence cannot be sustained in law.
It is not a case of concurrent findings based on the
evidence; it is a case of concurrent error. Unfortunately,
the High Court has failed to see this basic shortcoming in
the case of the respondent. Hence, we have no hesitation in
holding that the change of user of the building as a fact
was not established to apply Section 13(2)(ii)(b) of the
Act.
Now we will focus our attention to the issue as to
whether use of one room to do some home work relating to
office and use of the same room as study room by the members
of the family in the absence of Managing Director of the
appellant amounts to change in user of building having
regard to the facts of the case on hand. The map at
Annexure R/3 shows that the building is a big one with bed
rooms, dining, drawing etc., unmistakably showing that it is
a residential building. One small room is shown as office.
Introductory para 2 of the agreement to let (Exbt. P/3)
dated 1.1.1992 shows that the respondent agreed to let out
the premises to the appellant for a period of 11 months from
1.1.1992 for the residence only on the terms and conditions
mentioned below under the said paragraph. There are as many
as 16 terms and conditions. Out of them, conditions 7 & 8
read thus :-
7. That the second party will not sublet or part with
the possession of premises in favour of any body without the
written consent of the party of the first part.
8. That the second party shall not make any addition
or alteration in the premises without the written consent of
the first party.
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There is no specific clause in the agreement that the
appellant shall not use even one room as study room for the
members of the family or he shall not use one room to do any
office work at home. The respondent having chosen to
incorporate conditions 6 & 7 in the agreement (Exh.P-3)
relating to sub- letting and addition or alteration in the
premises has not chosen to add a specific clause prohibiting
use of any portion of the building in a particular manner
although it is stated in the introductory para of Exh.P-3,
that the premises is leased for the residence only. There
is no evidence to show that in one room the office of the
appellant-company was functioning or that any transactions
used to take place in that room relating to the
appellant-company or any regular business of the company was
carried out or that officials or other members of the public
used to visit the building as the office of the company. It
is not uncommon that the officials, executives, officers,
businessmen, industrialists and people engaged in the other
vocations may have some home work to do. In these days
computers, internet and other like facilities are kept at
home for convenience and use. In residential buildings
where persons live with family members, a room may be used
for the purpose of doing home work relating to office files
or study of children or allied or ancillary use in a
building leased for residential purposes. So long as in a
residential building, there is no regular commercial
activity or carrying on of business and regular office with
interaction of the public and customers, etc. it is not
possible to say that use of one room for doing home work or
study itself will change the user of the building and that
the classification and character of the building is changed.
But it continues to remain a residential building so also
its purpose remains as residential. Use of a room in a
residential building for personal purpose should be
distinguished from use of such a room for business, industry
or other commercial activity or as a regular public or
professional office. We must add that each case has to be
considered on its own facts on the basis of the pleadings
and evidence to find out as to whether there has been a
change of user in the building from residential to
non-residential as it is not possible to give exhaustive
list of situations as to change of user of buildings.
Section 13(2)(iii) and (iv) take care of situations
where tenant has committed such acts as are likely to impair
materially the value or utility of the building or the
rented land or where the tenant has been guilty of such acts
as are a nuisance to the occupiers of buildings in the
neighbourhood.
The interpretation of provision must be purposive and
not unduly restrictive or narrow. If we interpret Section
13(2)(ii)(b) in a restricted and narrow manner, it will be
difficult for any tenant occupying a residential building to
protect himself from arbitrary eviction and even to have
freedom to use the building even for residential purpose as
he wants. Such interpretation will defeat the intent and
purpose of the Statute.
This Court in Gurdial Batra Vs. Raj Kumar Jain (1989
(3) SCC 441) had an occasion to consider the very question
of the change of user within the meaning of Section
13(2)(ii)(b) of the Act. That was a case in which the
appellant had taken the premises on rent from the respondent
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for running a repair shop of cycles and rickshaws. He
carried on side by side selling televisions in the premises
for about seven months but had to stop the same as it was
not viable. The Rent Controller rejected the eviction
petition. The appellate authority at the instance of the
landlord granted eviction. The High Court declined to
interfere when moved by the tenant. Dealing with the
question whether there has been a violation of the terms of
tenancy by using the premises for a purpose other than that
for which it had been leased, this Court in para 6 & 7
stated thus:-
6. Letting of a premises can broadly be for
residential or commercial purpose. The restriction which is
statutorily provided in Section 132)(ii)(b) of the Act is
obviously one to protect the interests of the landlord and
is intended to restrict the use of the landlords premises
taken by the tenant under lease. It is akin to the
provision contained in Section 108(o) of the Transfer of
Property Act.
.......................................
A house let for residential purpose would not be
available for being used as a shop even without structural
alteration. The concept of injury to the premises which
forms the foundation of clause (b) is the main basis for
providing clause (b) in Section 13(2)(ii) of the Act as a
ground for the tenants eviction. The Privy Council in
U.Po. Naing vs. Burma Oil Co. (AIR 1929 PC 108) adopted
the same consideration. The Kerala High Court has held that
premises let out for conducting trade in gold if also used
for a wine store would not amount to an act destructive of
or permanently injurious to the leased property. Similarly,
the Bombay High Court has held that when the lease deed
provided for user of the premises for business of fret work
and the lessee used the premises for business in plastic
goods, change in the nature of business did not bring about
change of user as contemplated in Section 108(c) of the
Transfer of Property Act.
7. The landlord part with the possession of the
premises by giving a lease of the property to the tenant for
a consideration. Ordinarily, as long as the interest of the
landlord is not prejudiced, a small change in the user would
not be actionable.
In para 5 of the same judgment, referring to
observations of Lord Diplock, J. in Dupport Steels Ltd.
vs. Sirs ((1080) 1 All ER 529, it is stated thus:-
While respectfully agreeing with the said observations
of Lord Diplock, that the Parliament legislates to remedy
and the judiciary interpret them, it has to be borne in mind
that the meaning of the expression must be found in the felt
necessities of the time. In the background of the purpose
of rent legislation and inasmuch as in the instant case the
change of the user would not cause any mischief or detriment
or impairment of the shop in question and in one sense could
be called an allied business in the expanding concept of
departmental stores, in our opinion, in this case there was
no change of user which attract the mischief of Section
13(2)(ii)(b).
This judgment supports the case of the appellant.
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In Bishamber Dass Kohli (dead) by Lrs. Vs. Satya
Bhalla (Smt.) (1993 (1) SCC 566), this Court held that
change in use of a part of the premises as lawyers office
without seeking permission of the landlord amounted to
change in user from residential to scheduled building and it
constituted a valid ground of eviction under Section
13(2)(ii)(b) of the Act; change in user may be even in
respect of a small portion and need not be in respect of the
entire building or a substantial part thereof. Facts of the
case were that the suit premises was let out to the
respondent solely for residential purpose; the respondents
husband, a lawyer, established his office in a part of the
suit premises and started using the same for that purpose.
The Rent Controller ordered eviction under Section
13(2)(ii)(b) of Act. The appellate authority affirmed it.
The learned Single Judge of the High Court in revision set
aside the order of eviction holding that the building let
out as a residential building had become a ‘scheduled
building by use of a part thereof as lawyers office by the
tenants husband. This Court stated that Section 4 of the
Act deals with the fixation of fair rent and for that
purpose ‘scheduled building is treated differently from a
residential building and that the same is the position with
regard to the ground of eviction contained in Section
13(2)(ii)(b) wherein change in user of the building is alone
significant for constituting the ground. The object is that
the parties must remain bound by the terms of the lease.
Para 8 of the said judgment is to the following effect:-
8. It is clear that if the change in user of the
building is of the kind that it makes the residential
building let out for residential purpose alone change its
character and become a ‘scheduled building as defined in
Section 2(h) of the Act without the written consent of the
landlord, the ground of eviction under Section 13(2)(ii)(b)
is made out.
According to us, this judgment is on the facts either
admitted or established in that case. The building was let
solely for residential purpose; husband of the tenant
established his office as lawyers office in a part of the
suit premises, hence it became a ‘scheduled building within
the meaning of Section 2(h). In terms of para 8 of the
judgment extracted above, a building let out for residential
purpose alone, changes its character and becomes a scheduled
building as defined under Section 2(h) of the Act, without
the written consent of the landlord, the ground of eviction
under Section 13(2)(ii)(b) is made out. Section 2(d), 2(g)
and 2(h) define ‘non-residential building, ‘residential
building and ‘scheduled building respectively and they are
three different categories. Scheduled building is one which
is being used by a person engaged in one or more of the
professions specified in schedule I of the Act partly for
his business and partly for his residence. In the case on
hand, the facts are entirely different. The appellant even
if it is taken as using one room as office for his personal
purpose to do homework, it does not convert the building
into a scheduled building in as much he did not use the
building partly for his business and partly for his
residence. Hence the decision aforementioned has no
application to the facts in the present case.
The case of M. Arul Jothi & Another vs. Lajja Bal
(deceased) and Another (2000 (3) SCC 723) also does not
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support the case of the respondent as it is on the facts of
that case dealing with a specific clause contained in the
lease deed. In that case, eviction petition was filed under
Section 10(2)(ii)(b) of T.N. Building (Lease and Rent
Control) Act, 1960 on the ground that the appellant was
using building for a purpose other than that for which it
was leased. There was a specific prohibition clause in the
rent deed which stated that the premises shall be used by
the tenant only for carrying on his own business ........
and the tenant shall not carry on any other business than
the above-said business. Looking to the use of the words
only coupled with the other sentences that the tenant shall
not carry on any other business than the one specified, in
para 10 of this judgment the Court has observed thus:-
Having heard learned counsel for the parties in our
considered view of the cases cited on behalf of the
appellants were all those where there was no specific clause
restricting the use of the tenanted accommodation. On the
other hand, in the case in hand, there is a specific
prohibition clause in the rent deed. In the present case
there is a specific clause which states shall be used by
the tenant only for carrying on his business .... and the
tenant shall not carry on any other business than the
abovesaid business. By the use of the word only with
reference to the tenant doing business coupled with the last
three lines, namely, the tenant shall not carry on any
other business than the abovesaid business, clearly spells
out the intent of the parties which restricts the user of
the tenanted premises, only for the business which is stated
therein and no other.
..................................
The learned Senior Counsel for the respondent
emphasizing as to the use of the words for residence only in
the lease agreement submitted that the aforementioned case
fully supports the respondent. We do not think so, for the
reasons more than one. That was a case where the shop, a
non-residential building, was let out on condition to carry
on only a specified business and no other business;
although in the lease deed in the case on hand it is stated
that the premises was taken for residence only; there is no
other clause specifically prohibiting the use of a room in
the building even for either study or to carry on some home
work of the office. On facts also, as already noticed
above, change of user of the premises has been neither
properly pleaded nor established. Paragraph 10 extracted
above, was more on the point dealing with a specific
prohibitory clause in the lease deed. The Court looking to
the word only coupled with other specific prohibitive clause
took that view.
In this case, with which we are concerned, there is no
specific clause in the lease agreement prohibiting use of
even a room in the building for disposal of some files at
home pertaining to his office and for the study of family
members. The fact is that the appellant is living with the
members of his family; the building did not cease to be a
residential building and the purpose and character of the
use of the building also did not change. As a matter of
fact also, the respondent, as already noticed above, has
failed to establish the change of user of the building by
necessary pleading and evidence.
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Under these circumstances, the issue is answered in the
negative. In the result for the reasons stated hereinabove,
the impugned judgment and order of the High Court are set
aside. The appeal is allowed and the petition filed for
eviction by the respondent is dismissed with no order as to
costs.