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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.

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   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.