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PETITIONER: JAGDISH LAL

       Vs.

RESPONDENT: PARMA NAND

DATE OF JUDGMENT:       27/03/2000

BENCH: D.P.Wadhwa, S.S.Ahmad

JUDGMENT:

     S.  SAGHIR AHMAD, J.  Leave granted.  The appellant is the  tenant  of  the shop in question under  a  lease  dated 21.3.1982  executed  by the respondent in his favour,  under which  the  shop  was let out for the business  of  Maniyari [(General Merchant) Readymade & Cloth Merchant] on a monthly rent  of Rs.600/-.  On 15th June, 1987, the respondent filed a petition under Section 13 of the Haryana Urban (Control of Rent  &  Eviction)  Act, 1973 (for short,  the  "Act"),  for eviction  of the appellant on several grounds, including the arrears  of rent, structural alteration, bona fide need  and changing  the  user  of the shop for which it was  let  out. This  application was allowed by the Rent Controller by  his order dated 25th March, 1995 only on the ground of change of user  of  the shop.  The other grounds, namely, the  grounds relating  to  arrears  of rent, structural  alterations  and genuine  need of the landlord were rejected.  The  appellate authority  before  whom an appeal was filed by  the  present appellant  dismissed the appeal by judgment dated 4th April, 1998  and upheld the judgment passed by the Rent Controller. The  Revision  filed  thereafter  in   the  High  Court  was dismissed  on 25th May, 1998.  Learned counsel appearing for the respondent has raised a preliminary objection that since the appellant had given an undertaking before the High Court that he would vacate the shop in question by a specific date provided  he was granted time for that purpose, the  present appeal  is  not maintainable.  The relevant portion  of  the High  Court  judgment which relates to this  undertaking  is reproduced  below:   "Mr.   Goel, learned  counsel  for  the petitioner,  states  that  the petitioner  be  allowed  some reasonable  time  to vacate the premises.  He undertakes  on behalf  of  the petitioner to hand over vacant possesion  to the  landlord  on  or  before September  1,  1998  and  also undertakes  to deposit the arrears of rent, if any, together with  future rent within two weeks from today.  In case  the petitioner  deposits the arrears of rent, if any,  alongwith future  rent  within two weeks, the ejectment order  against him  will not be executed till September 1, 1998 in view  of his  undertaking." It is contended that since the  appellant had furnished an undertaking in terms of the judgment passed by  the  High  Court, he was bound to vacate  the  premises. Since  he did not honour the undertaking and instituted  the present  appeal in this Court by filing initially a  Special Leave  Petition  under Article 136 of the  Constitution,  he cannot  be heard in the matter as the filing of the  Special Leave  Petition  in  this Court amounts to a breach  of  the undertaking  given to the High Court which must be  honoured by  him  and he must be directed to vacate the  premises  in

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terms  of  the undertaking.  Reliance for this  purpose  has been  placed by the learned counsel for the respondent on  a decision  of  this  Court  in Thacker  Hariram  Motiram  vs. Balkrishan  Chatrabhu Thacker & Ors.  1989 Supp(2) SCC  655, in  which also an undertaking was given by the tenant and on that  undertaking  he was allowed sufficient time to  vacate the  premises.  It was held that in terms of the undertaking given  by  him,  he must vacate the premises.   We  are  not prepared  to  accept  this  contention.   The  question  was examined  by  this  Court in a subsequent decision  in  P.R. Deshpande  vs.  Maruti Balaram Haibatti (1998) 6 SCC 507, in which  it  was laid down by a Bench of three Judges of  this Court  that  even if the tenant gives an undertaking in  the High  Court  to vacate the premises, his right  to  approach this  Court  under  Article 136 of the Constitution  is  not affected.   The tenant would still have a right to  approach the  higher  court and even seek interim relief of  stay  of eviction  despite the undertaking given by him to vacate the premises.   This  decision, decisively and clearly, has  the effect of overruling the earlier decision in Thacker Hariram Motiram’s  case (supra) as also two other decisions in Vidhi Shanker vs.  Heera Lal 1987 Supp.  SCC 200 and in Ramchandra Jai  Ram  Randive vs.  Chandanmal Rupchand 1987  Supp.   SCC 254.   The  preliminary objection is accordingly  overruled. We  may  now  consider the next submission  of  the  learned counsel   appearing   for  the   appellant  that  the   Rent Controller,  the appellate authority and the High Court were wrong  in ordering his eviction from the shop in question on the ground that there was a change of user and that the shop was  being  used for a purpose other than that for which  it was  let out.  The shop was given to the appellant under the lease deed dated 21.3.1982 which recites that it was let out for the business of "MANIYARI (General Merchant) Readymade & Cloth  Merchant".   Section  13  of  the  Act,  inter  alia, provides   as  under  :   "13(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 the 1949 Act, without the written consent of the  landlord, -- (a) ............  (b) used the building or rented  land for a purpose other than that for which it  was leased." This Section specifically provides that if the Rent Controller  is  satisfied  that  the  tenant  is  using  the building  for  a  purpose other than that for which  it  was leased,  it  would  order  eviction of  the  tenant  on  the application  of  the landlord.  Mr.  Dushyant Dave,  learned Senior  Counsel  appearing  on behalf of the  appellant  has contended  that under Section 2 of the Act, the building  is divided      into     two         categories     --      (i) commercial/non-residential,  and  (ii) residential.   It  is contended that if the use of the building purports to change the      character     of         that     building     from commercial/non-residential  to  residential or  vice  versa, then  alone it can be said that the building was being  used for  a purpose other than that for which it was let out.  He contends  that  the  shop  in question was  being  used  for commercial  purposes,  it  continues  to be  used  for  that purpose  and  its  user  has   not  been  converted  into  a ’residential  purpose’.  Mr.  Rakesh Dwivedi, learned Senior Counsel  appearing  for  the respondent has  contended  that since  the  shop  in  question was let out  for  a  specific purpose  of carrying on the business in General  Merchandise and  Readymade  &  Cloth Merchant, the appellant  could  not

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legally  have used the shop for the purpose of a  restaurant or  for  selling  sweetmeat.   The shift  of  business  from General  Merchandise to Restaurant Business was in itself  a serious nuisance on account of the furnace which was ignited for  making tea or boiling milk or preparing other eatables, including  sweetmeat and, therefore, the terms of the  lease deed  that  the shop could not be used for  other  purposes, stood  violated giving to the landlord a cause of action for seeking  appellant‘s eviction.  Categorisation of  buildings into  commercial and residential is a broad  categorisation, but it is the user of the shop which is material for seeking eviction  of  the tenant.  The words of this Section, it  is contended,  are clear and convey a plain meaning that if the purpose  for which the shop was to be used was abandoned and it  was  put to use for any other purpose, though it may  be commercial  in  nature,  the tenant would be  liable  to  be evicted.   The provisions of the Act, as we shall  presently see,  have been differently interpreted at different  times. Mr.  Dave referred to a decision of this Court in Rattan Lal vs.   Asha Rani (1988) 3 SCC 586, in which the shop was  let out  for  grocery  business but the tenant  started  selling books  in  that shop.  The tenant, from a grocer,  became  a bookseller  and it was for this reason that his eviction was sought.   But  it was held that the change of business  does not amount to change of user as contemplated by the Act and, therefore,  the  tenant was not liable to be  evicted.   The Court,  instead of directing eviction, enhanced the rent  of the  shop.  In Mohan Lal vs.  Jai Bhagwan (1988) 2 SCC  474, which  was also a case under Section 13 of the Act which  is presently  under  our consideration, the shop which was  let out for running the business of English Liquor Vend was used for  General  Merchandise.   It was held that it  would  not amount  to  change in user.  It was further held as under  : "The  business purposes must be adjudged in the light of the purposes of the Rent Act in question which is to control the eviction  of tenants therefrom.  In the expanding concept of business  now-a-days and the growing concept of departmental stores,  we  are of the opinion that it cannot be said  that there was any change of user in the facts of this case which would  attract  the  mischief of the provisions  of  Section 13(2)(ii)(b)  of  the  Act.   The building  was  rented  for purpose  of  carrying  on a business, using it  for  another business,  it  will  not in any way impair  the  utility  or damage  the  building and this business can be  conveniently carried  on  in  the said premises.  There was  no  nuisance created."  In yet another decision in Grudial Batra vs.  Raj Kumar  Jain  (1989) 3 SCC 441 = AIR 1989 SC 1841, a  similar provision  under  Section 13(2)(ii)(b) of East Punjab  Urban Rent  Restriction Act, 1949 came to be considered.  The shop was  let out for cycle and rickshaw repairing business,  but the  tenant  started the television business.  The  question which  arose  before the Court was whether the premises  had been  used  for a purpose other than that for which  it  had been  let out.  This Court held that in the circumstances of the  case,  "the business of selling television sets"  which was  started by the tenant in that shop cannot be said to be a  purpose  other than that for which the shop was let  out. Reference  was also made to the provisions of Section 108(o) of  the  Transfer of Property Act, 1882 which,  inter  alia, provides  as  under :  "the lessee may use the property  and its products (if any) as a person of ordinary prudence would use  them  if  they were his own;  but he must not  use,  or permit another to use, the property for a purpose other than that  for which it was leased.  ......................." The words  "use  the property for a purpose other than that  for

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which  it was leased" occurring in this clause mean that the change  of business would not bring about change of user  as contemplated by this clause.  It will thus be seen that mere change  of business does not amount to change of user within the  meaning  of  the  Act.    The  philosophy  behind  this proposition  seems  to be that a shop which is meant  to  be used  exclusively  for commercial purposes must be used  for that  purpose.  If the tenant has started a business in that shop  and  that  business does not succeed and it  does  not bring  in sufficient monetary returns to enable him to  earn his livelihood, he would naturally abandon that business and start  a  new venture.  The new venture may not be the  same which was initially carried on.  It will be permissible only to  a  limited  extent, that is to say, if  the  tenant  was permitted  to  sell his goods and the shop was meant  as  an outlet  for  the  goods manufactured by  him  elsewhere,  he cannot  start the manufacturing process in the shop  itself. It was for this reason that this Court in Ram Gopal vs.  Jai Narain & Ors.  1995 Supp.(4) SCC 648, which again was a case under  this Act, held that where a premises were demised for running  a  shop, the tenant cannot legally instal an  "Atta Chakki  and Oil Kolhu" on the premises as it would amount to a  change of user.  In Dashrath Baburao Sangale & Ors.   vs. Kashimath  Bhaskar Data 1994 Supp (1) SCC 504 = AIR 1993  SC 2646,  an open piece of land was let out for carrying on the business  of  sugarcane  crushing.  The tenant used  it  for selling  cloth  and readymade clothes.  This Court  did  not interfere with the findings of fact concurrently recorded by the  Rent  Controller, the Appellate Authority and the  High Court that there was a change of user as the land let out to the  tenant was not being used for the purpose for which  it was  let out.  The tenant was held liable for eviction.   In Bishamber  Dass Kohli (D) by LRs.  vs.  Satya Bhalla (Smt.), (1993)  1  SCC 566, the Court held that if the building  was let  out solely for residence, but in a part of the building a  lawyer‘s  office  was  established  without  the  written permission  of the landlord, it would amount to a change  in the  user and consequently the tenant would be liable to  be evicted.   The Punjab & Haryana High Court in Om Prakash vs. Parmeshri  Dass 1984(1) All India RCJ 241 held that a tenant to whom the shop was let out for carrying on the business as General  Merchant and "Kirana" had changed his business  and started  a tea-stall where he was also selling cold  drinks, would be treated to have changed the user and the tenant was liable to eviction.  The same High Court in Pratap Singh vs. Ajmer  Singh 1984(1) All India RCJ 431 held that if the shop was  let out to the tenant for doing business in "dry fruits and  soda water", he could not set up an "oven" and  prepare ‘pakoras’  as  it would amount to material  and  substantial change  in  user  of the shop in question.  The  High  Court followed  its  own Full Bench decision in Sikandar  Lal  vs. Amrit Lal 1984 (1) RCJ 116.  In Banwari Lal vs.  Iqbal Singh (1980)  2 RCR 119, the shop portion of the building was  let out to the tenant for carrying on the business of "General & Provision  Store",  but he switched over to the business  of selling  "stones  and marble chips." It was held that  since there  was  a  change  of user, the  tenant  was  liable  to ejectment.   On a consideration of these decisions, it comes out that where the new business started by the tenant in the premises let out to him was an allied business or a business which  was  ancillary  to the main business,  it  would  not amount  to change of user.  It is true that where a premises is  let  out for commercial purposes, carrying on of  a  new business activity therein would not change the nature of the building  and it would still remains a commercial  building.

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But  that is not enough.  Having regard to the provisions of the  Act and the intendment of the Legislature in  providing that  the  tenant would not use the premises for  a  purpose other  than that for which it was let out, the new  business should  either have some linkage with the original business, which  under the agreement of lease the tenant was permitted to carry on, or it should be an allied business or ancillary to  that  business.   Where local laws  provide  a  specific prohibition  in respect of the use of the premises under the Rent  Legislation and that provision has been interpreted in a particular manner by the High Court consistently, it would not  be  proper  to  disturb  the  course  of  decisions  by interpreting  that  provision  differntly.  In  the  instant case,  the premises in question was let out to the appellant for   "Maniari"  [(General  Merchant)   Readymade  &   Cloth Merchant]  business.  The setting up of a restaurant therein and  serving tea and cold drinks would, in the circumstances of this case, amount to change of user within the meaning of Section  13.   The redeeming feature, however, is  that  the appellant  has reverted back to his original business during the  pendency  of  the  eviction petition  before  the  Rent Controller  and for many years now has been carrying on  the original business.  In these circumstances, where the change of  business  was  only  for a very  short  period  and  the appellant,  during the pendency of the eviction  proceedings reverted  to  the original business which he is carrying  on since then, and more particularly because all other grounds, namely,  arrears of rent, structural alterations made in the premises  in  question  and  bona fide  requirement  of  the landlord, on which the eviction of the appellant was sought, have  been negatived, we feel that the ends of justice would be  better served if the appellant is allowed to stay in the premises  in  question as tenant, subject, however,  to  his paying  rent  at  the  rate of  Rs.1,500/-  p.m.   than  the original rent of Rs.600/- p.m.  The appeal is disposed of in the  manner  indicated above.  There will be no order as  to costs.