Full Judgment Text
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PETITIONER:
GURDIAL BATRA
Vs.
RESPONDENT:
RAJ KUMAR JAIN
DATE OF JUDGMENT18/07/1989
BENCH:
MISRA RANGNATH
BENCH:
MISRA RANGNATH
KULDIP SINGH (J)
CITATION:
1989 AIR 1841 1989 SCR (3) 423
1989 SCC (3) 441 JT 1989 (3) 96
1989 SCALE (2)17
ACT:
East Punjab Urban Rent Restriction Act, 1949:
Section 13(2) (ii) (b). Eviction--Premises let out for cycle
and rickshaw repair-Business of selling televisions also
carried on temporarily side by side-Whether change of user.
Transfer of Property Act, 1882: Section 108(o) Change of
user of premises--Prejudice to the interest of
landlord--Whether necessary.
HEADNOTE:
The appellant had taken the premises on rent from the
respondent landlord for running a cycle and rickshaw repair-
ing shop. In the rent note there was no stipulation that the
appellant would not do any business in the shop except the
cycle or rickshaw repairs. Along with the repair business
the appellant temporarily carried on sale of televisions
also in the premises. The landlord filed an application for
eviction under section 13(2)(ii)(b) of the East Punjab Urban
Rent Restriction Act, 1949 alleging that the tenant had put
the premises to different use.
The Rent Controller rejected the application by holding
that the temporary sale of televisions did not constitute
user for a purpose other than that for which the premises
was leased. On an appeal filed by the landlord the appellate
authority granted eviction by holding that the statutory
condition was satisfied. The appeal filed by the tenant
against the decision of the appellate authority was dis-
missed by the High Court. Hence this appeal by the tenant.
Allowing the appeal and setting aside the order of eviction,
HELD: Letting of a premises can broadly be for residen-
tial or commercial purpose. The restriction which is statu-
torily provided in section 13(2)(ii)(b) of the Act is obvi-
ously one to protect the interests of the landlord and is
intended to restrict the use of landlord’s premises taken by
the tenant under lease. It is akin to the provision con-
tained in section 108(o) of the Transfer of Property Act
dealing with the obliga-
424
tions of a lessee. 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
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which forms the foundation of clause (o) is the main basis
for providing clause (b) in section 13(2)(ii) of the Act as
a ground for the tenant’s eviction. [426H, 427A-B]
The landlord parts with possession of the premises by
giving a lease of the property to the tenant for a consider-
ation. Ordinarily, as long as the interest of the landlord
is not prejudiced, a small change in the user would not be
actionable. In the instant case, the premises was let out
for running of a repair shop. Along with the repair busi-
ness, sale of televisions was temporarily carried on. This
did not constitute a change of user within the meaning of
section 13(2)(ii)(b) of the Act so as to give a cause of
action to the landlord to seek eviction of the tenant.
[427E, F]
Mohan Lal v. Jai Bhagwan, [1988] 2 S.C.C. 474, applied.
Des Raj v. Sham Lal, A.I.R. 1980 P & H 229, held inapplica-
ble.
Moti Ram v. State of Mahdya Pradesh, A.I.R. 1978 S.C.
1594; Maharaj Krishan Kesar v. Milkha Singh, Civil Appeal
No. 1086 of 1964 decided on November 10, 1965 (S.C.); Dup-
port Steel Ltd. v. Sirs, [1980] 1 All. E.R. 529; U.P. Naing
v. Burma Oil Co., A.I.R. 1929 P.C. 108; Raghavan Pillai v.
Sainaba Beevi, [1977] Kerala L.T. 417 and Dattatraya v.
Gulab Rao, [1978] Maharashtra L.J. 545, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2873 of
1987.
From the Judgment and Order dated 5.8.1987 of the Punjab
& Haryana High Court in Civil Revision No. 2209 of 1979.
Harbans Lal, S.K. Mehta, Dhruv Mehta and Aman Vachher
for the Appellant.
Rajinder Sachhar, K.C. Dua and Ms. Manju Chopra for the
Respondent.
N.S. Das Behl, (Not present)
The Judgment of the Court was delivered by
425
RANGANATH MISRA, J. This is a tenant’s appeal by special
leave challenging his eviction from a business premises
located at Jallandhar.
Under a rent note (Exh. A-I), the appellant had taken
the premises on rent from the respondent-landlord. The use
to which the premises was intended to be put was running of
a cycle and rickshaw repairing shop. As far as relevant, on
the allegation that the tenant had put the premises to
different use, an application for his eviction was made
under s. 13(2)(ii)(b) of the East Punjab Urban Rent Restric-
tion Act, 1949.
The Controller found that the appellant had continued
the business of repairing of cycles and rickshaws but side
by side had for a period of about seven months been selling
televisions in the premises but he stopped the same as it
was not viable. According to the Controller, this did not
constitute user for a purpose other than that for which the
premises was leased and he accordingly rejected the peti-
tion. The appellate authority at the landlord’s instance
held that the statutory condition was satisfied and granted
eviction. The High Court when moved by the tenant declined
to interfere.
The short question that arises for consideration is
whether there has been a violation of the terms of tenancy
by using the premises for a purpose other than that for
which the premises had been leased. The tenant did not
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dispute that he had taken the premises for running a repair
shop of cycles and rickshaws. In his statement he said that
he had commenced the business of selling the televisions
side by side in view of the slump in the cycle and rickshaw
repairing business. He also accepted the position that he
had not obtained the consent of the landlord when he started
the TV business. The landlord has accepted the position that
in the rent note it was not written that the respondent
would not do any business in the shop in dispute except the
cycle or rickshaw repairs. On these facts it has now to be
decided as to whether the premises has been used for a
purpose other than that for which it had been leased.
Reliance was placed on the Full Bench decision of the
Punjab High court in Des Raj v. Sham Lal, AIR 1980 P & H 229
where the question for consideration was as to whether when
the lease was for the purpose of a shop without anything
more specific, user thereof as a godown amounted to change
of user. The High Court in course of the discussion in the
judgment rightly drew the distinction between resi-
426
dential and non-residential premises and also classified
non-residential buildings into known categories like shop,
godown, restaurant, cinema, hotel etc. In course of the
discussion the Full Bench referred to the decision of this
Court in Moti Ram v. State of Madhya Pradesh, AIR 1978 SC
1594 and came to the conclusion that when the letting out
purpose was location of a shop and it .was exclusively used
as a godown, it amounted to a change of user. Not much of
support is directly available for the resolution of the
present dispute from that judgment. Reliance was also placed
on a decision of this Court in the case of Mohan Lal v. Jai
Bhagwan, [1988] 2 SCC 474 where the very provision of the
East Punjab Act was considered in a case of eviction. The
decision of this Court in the case of Maharaj Kishan Kesar
v. Milkha Singh, (C.A. No. 1086/64 decided on November 10,
1965) was referred to therein. That again was a decision
under the very Act and the dispute related to the allegation
of change of user when petrol was sold as an allied business
of the avowed purpose of locating the workshop. The Court
found. that location of a petrol pump could not be regarded
as not being a part of motor workshop business. Rightly, our
learned brother Mukharji, J. indicated that the ratio in
Maharaj Kishan Kesar’s case did not provide any guideline of
general nature. What was said in pars 9 of his judgment is
perhaps useful. Our learned Brother quoted the observations
of Lord Diplock, J. in Duport Steels Ltd. v. Sirs, [1980] 1
All ER 529 and said:
"While respectfully agreeing with the said
observations of Lord Diplock, that the; Par-
liament Legislates to remedy and the judiciary
interprets 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 legisla-
tion and inasmuch as in the instant case the
change of the user would not cause any mis-
chief 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 at-
tracted the mischief of section 13(2)(ii)(b)."
On that conclusion, the order of eviction was reversed.
Letting of a premises can broadly be for residential or
commercial purpose. The restriction which is statutorily.
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provided in s. 13(2)(ii)(b) of the Act is obviously one to
protect the interests of the landlord .and is intended to
restrict the use of the landlord’s premises
427
taken by the tenant under lease. It is akin to the provision
contained in s. 108(0) of the Transfer of Property Act
dealing with the obligations of a lessee. That clause pro-
vides: ’The lessee may use the property and its products,
if. any, as a person of ordinary prudence would use then if
they were of his own; but be must not use or permit another
to use the property for a purpose other than that for which
it was leased ....’ 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 cl. (o) is the main basis for
providing cl.(b) in s. 13(2)(ii) of the Act as a ground for
the tenant’s eviction. The Privy Council in U Po Naing v.
Burma Oil Co., AIR 1929 PC 108 adopted the same considera-
tion. 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 (1977 Ker. LT 417). Simi-
larly, 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 plas-
tic goods, change in the nature of business did not bring
about change of user as contemplated in s. 108(o) of the
Transfer of Property Act (1978 Mah. LJ 545).
The landlord parts with possession of the premises by
giving a lease of the property to the tenant for a consider-
ation. Ordinarily, as long as the interest of the landlord
is not prejudiced, a small change in the user would not be
actionable.
In this case, the premises was let out for running of a
repair shop. Along with the repair business, sale of televi-
sions was temporarily .carried on. We do not think this
constituted a change of user within the meaning of s.
13(2)(ii)(b) of the Act so as to give a cause of action to
the landlord to seek eviction of the tenant.
The appeal is allowed and the order of eviction passed
by the appellate authority and affirmed by the High Court is
vacated and the order of the Controller is restored. Parties
are directed to bear their own costs throughout.
T.N.A. Appeal allowed.
428