JUDGMENT
Ashok Bhan, J.
1. The revision petition has been filed on behalf of the landlord, which arises from the following facts:
Landlord let out a shop to the respondent-tenant (hereinafter referred to as the tenant) on a monthly rent of Rs. 175/. The ejectment was sought on the following grounds:-
(i) That the tenant has not paid the rent and house tax w.e.f. 1.1.1985 till the dale of filing of the petition in May l986;
(ii) that the tenant had sublet the shop to Loku Ram respondent No.2 after the commencement of the East Punjab Urban Rent Restriction Act. 1949 (the present petition has been filed under section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 which has replaced the Act of 1949): and has transferred complete possession without the consent of the petitioner, and
(iii) that the tenant has converted the shop in to a go down after the commencement of 1949 Act without the consent of the landlord thereby diminishing the value and utility of the same.
2. Petition was contested by the tenant and the alleged sub tenant. Preliminary objections as to the petition being false and frivolous and misjoinder of necessary parties have been taken alleging that M/S Nagpal Cycle Works –
in which respondents are partners to be contractual tenant. Grounds of ejectment have been controverted. It has been pleaded:
(i) That the rent was tendered with house tax, interest and costs in the Court on 6.10.1986 but the landlord refused to accept the tender and, therefore, this ground of ejectment is not available. Rate of rent has been admitted but liability to pay house tax has been disputed:
(ii) It was alleged that respondent No. 2 Loku Ram was a partner of the firm M/s Nagpal Cycle Works and not a sub tenant: and
(iii) allegation as to conversion of shop into godown and diminishing the value and utility of the shop has been denied.
3. Replication was filed. Allegations made in the written statement were controverted and the ones made in the petition were reiterated.
4. On the basis of pleadings of the parties, the following issues were framed: –
1. Whether there is relationship of landlord and tenant between the petitioner and respondent No.1? OPA
2. Whether respondent No.1 is liable to be evicted on account of non payment of rent? OPA
3. Whether respondent No.1 has sublet the shop in dispute to respondent No. 2 as alleged? OPA
4. Whether the respondents have converted the shop in dispute in to godown as alleged? OPA
5. Relief.
5. Rent Controller clubbed issues No, 1 to 3 for discussion. It was held that the tenant and the alleged sub tenant were running the business in partnership in the demised premises and enjoyed the status of tenant; arrears of rent were tendered and, therefore, the ground of non payment of rent and subletting were not available to the landlord. Finding on issue No. 4 regarding change of user by conversion of, demised shop into godown was returned in favour of the landlord. Consequently, the tenants were directed, to put the landlord in possession of the demised premises. The tenant being aggrieved filed an appeal before the first appellate authority. Appellate Authority accepted the appeal and reversed the finding of the Rent Controller on issue No. 4. Landlord being aggrieved has come in revision to this Court.
6. The only issue contested before this Court is regarding change of user under issue
No. 4. One fact, which deserves to be noticed, is that on an application filed by the landlord, a Local Commissioner was got appointed on the date the petition for ejectment was filed. Rent Controller appointed a lawyer as a Local Commissioner who went to the premises and reported that the shop
in dispute was being used as a go down. Two photographs were taken by the local commissioner which, have been attached as Annexure AW 3/1 and AW3/2 from which it could be inferred that the shop in dispute was being used as a gowdown. Rent Controller had relied upon this piece of evidence which was discarded by the appellate authority on the ground that the Local Commissioner had extended his juridiction in making his report; that the Local Commissioner was merely asked to report about the existing state of affairs and it was not with in his province to get the premises opened and then report as to whether the same was being used as a shop or as a gowdown that the local Commissioner acted beyond the scope of reference regarding his appointment. Further finding record by the appellate authority was that there was no evidence regarding diminishing of value and utility of the building in dispute because of the change of user from shop to a godown; that mere change of user would not entitle the landlord to get back the possession of the demised premises until and unless diminition in the value and utility of the building was proved.
7. I have heard counsel for the parties at length. In my opinion, the order passed by the appellate authority deserves to be set aside.
8. At the outset, it may be noticed that mere change of user of the demised premises from one trade to another itself is no ground for eviction as held by the Supreme Court in Mohan Lal v. Jai Bhagavan, (1988-1)93 P.L.R. 670 (S.C.) In the said case it was held by the Supreme Court of India that where a building is rented for purpose of carrying on a business, using it for another business, will not in any way impair, the value and utility of the building. The point in issue in the present case is that the tenant has not changed his trade but has changed the user of the building from a shop to that of a godown. It has been admitted by the tenant in his written statement that the demised building was given to hint for carrying on a shop for cycle repairs etc. The point is; if the user of the terms of the building is changed from a shop to that of a godown then whether a change of user would be there or not?
9. A Full Bench of this Court in Des Raj v. Sham Lal, (1980)82 P.L.R. 647considered this question at length and held as under:-
“Held, that where a demised ‘building’ is identified merely as ‘shop’ then the same can be used only as a ‘shop’, although various kinds of trade could be carried on therein, but if the said demised ‘building’ came to be used later on exclusively as residential budding then that would tantamount to the change of user. Similarly, if such a demised ‘building’ was put to use exclusively as a godown (for the Moment assuming that the expression ‘godown’ connotes a ‘building’ that is used for the purpose of only stocking provisions therein), then that would tantamount to the change of user. The reason being that when the demised building is used as a ‘shop’, it is being put to constant use by the lessee which, by implication, ensures its proper up keep likely timely repair, timely white washing etc., when a building is good as a godown which is merely used for dumping goods there in, such an upkeep may neither be possible nor, by implication, envisaged as such”
“Held further the purpose to which a “shop” can normally be put being inherently different from the normal use to which a building described as ‘godown’ is put, as already observed, the ‘shop’ herein having been used exclusively is ‘godown’, the conclusion in the light of what is held above, is inevitable that the tenant had changed the user and was liable to be evicted in terms of Section 13(2)(ii)(b) of the Act.”
10. This matter was again considered by a Single Judge of this Court in Gokal Chand v. Ramesh Chanter and Ors., (1992-1)101 P.L.R. 545, wherein the Full Bench judgment of this Court (Supra) Court in a Mohan Lal’s case (supra) were considered at length and it was held that the demised premises were let out to the tenant for use as a godown and the change of the user of the premises for purposes of sale of stored goods would amount to change of user. Thereafter, a learned Single Judge of this Court again referred the following question for decision to a larger Bench:-
“Where from the very inception of the tenancy, premises described as ‘shops’ in the rent note, are used, to the knowledge, though without the written consent of the landlord, as a godown or workshop, would this render the tenant immune from ejectment on the ground of change of user?”
11. This reference was answered by the Division Bench in Dharam Raj and Anr.v. Roshan Lal and Anr., (1993-1)103 P.L.R. 685, after considering
the case law including the judgment of die Supreme Court in Mohan. Lal’s case (supra) and that of the Full Bench of this Court in Des Raj’s case (supra) in these words:-
“A review of the judicial precedents, in the context of the plain meaning of the relevant statutory provisions, leaves no doubt, that mere knowledge of the landlord of the change of user, may be even from die very inception of the tenancy, would not absolve the tenant from liability for ejectment on that ground, in the absence of any written consent of the landlord to such change of user. This reference has this to be answered accordingly.
12. So the position of law in view of die judgments in Dharma Raj case (supra) and Des Raj’s case (supra) is very clear that the change of user from shop to a godown would amount to a change of user if it is done without the written consent of the landlord. In this case, as pointed out earlier, the premise was taken by the tenant as a shop.
13. The next point to be seen is; whether the same is being used as a godown or not, on facts?
14. Rent Controller came to the conclusion that the tenant has changed the user from shop to a godown on the report of the Local Commissioner, testimony of the landlord and RW2 Chatterbhuj Sharma U.D.C. from the Department of Income Tax. Local Commissioner reported that the tenant was in possession of two shops one opposite the other. In one premises he had opened a shop and in the other premises i.e. the demised premises were being used as a godown. Local Commissioner produced photographs Exs. A.W. 3/1 to AW3/3 to show that the shop in dispute was being used as a godown. Chaterbhuj Sharma RW2 deposed that in the income tax returns filed by the tenant, the tenant was claiming rent regarding two premises i.e. the godown and the shop-. Appellate Authority discarded the evidence of the Local Commissioner on the ground that report made was beyond the reference. Even if the evidence of the Local Commissioner is discarded on a technical ground, the testimony of RW 2 Chaterbhuj Sharma is there which shows that the tenant is using one of the two shops in his possession as a godown. Coupled with the statement of the landlord, it is clear that the shop in dispute is being used as a godown. Admittedly, the tenant has two shops one opposite the other. In his income tax returns he is claiming expenses of rent paid for a godown which gives rise to the presumption that the demised premises is being used as a godown.
15. The next point argued by the counsel for the tenant was that the landlord has failed to prove any impairment to the value and utility of the demised premises because of the change from shop to a godown. Full Bench of this Court in Des Raj’s case (supra) held that when the building is being used as a shop, it is being put to constant use by the lessee which by implication, ensures its proper upkeep like timely repair, timely white washing etc and when the building is used as a godown which is merely used for dumping goods therein, such an up keep any neither be possible nor, by implication, envisaged as such. Impairment of value and utility in such circumstances is implied which would follow in due course of time. Another point taken by the counsel for the tenant is that the landlord has not sought the eviction of the tenant from the premises in dispute on the ground of change of user. This submission is also without any substance. In sub para (iii) of para 4 of the ejectment petition the landlord has clearly averred that the tenant has converted the shop in dispute in a godown without his written consent and this act on the part of the. tenant has diminished the value and utility of the shop in dispute. The landlord has taken the ground of change of user of the shop to a godown which has resulted in diminishing the value and utility of the shop.
16. For the reasons recorded above, it is held that the tenant has changed the user of the shop to a godown and as such the present revision petition as well as the ejectment petition filed by the landlord are accepted. The impugned judgment of the appellate authority is set aside and that of the Rent Controller restored. The tenant is ordered to be evicted from the demised premises. He is directed to hand over the vacant possession of the demised premises within a period of two months. He is also directed to pay the arrears of rent, if any, within one month. No costs.