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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