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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