ORDER
S.S. Sodhi, J.
1. 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 work-ihop, would this render the tenant immune from ejectment on the ground of change of user? Herein lies the controversy, in this reference.
2. The other and ancilliary point, being whether in the context of the demised premises, being used as godown and workshop from very beginning, their description as ‘shops’ in the rent note is not to be taken to be sacrosanct?
3. In the case here, the rent note described the demised premises as ‘shops’. These
premises were let out to two different tenants, one used it as a godown and the other as a workshop for baking bamboos and had for that purpose also installed a bhatti. The Rent Controller held that this amounted to change of user and ordered the ejectment of the tenants. The Appellate Authority, on the other hand, came to a different conclusion, namely, that as the demised premises were being used from the very beginning of the tenancy as godown and workshop respectively, there was no change of user.
4. In dealing with the issues raised, the law as it stands leaves no manner of doubt that where the rent note describes the demised premises as ‘shops’, they have undoubtedly to be taken to be so. In other words, their use, no matter from when, cannot lend any different colour to the meaning of their description, as contained in the rent note. This has clearly to be so held in view of the judgment of the Full Bench in Des Raj v. Sham Lal, AIR 1980 Punj. and Har 229 where it was said that it would be, “utterly illogical to say that the identification of a demised building in a rent note by itself is not indicative of the use to which the demised building was intended to be put by the lessee.” It was further observed (para 12) :–
“Accordingly, if a demised building is identified as a ‘house’ in a lease deed, it would be taken that the parties had used the expression ‘house’ in the sense in which the ‘house’ is understood in common parlance or as indicated by its dictionary meaning. Similar would be the situation where the expression ‘shop’is used. In such a case, the parties would be taken to have used the expression ‘shop’ as understood in common parlance and the meaning given to the same in the dictionaries.”
5. Such thus being the settled position in law, regardless of the fact that the demised premises were from the very inception of the tenancy being used as godown and workshop, their description as ‘shops’ in the rent note cannot but be taken to be the use for which they were let, namely, ‘shops’as understood in common parlance.
6. Turning now to the other and main question, namely, whether the landlord can seek ejectment of the tenant on the ground of change of user without his written consent where the demised premises have to his knowledge been used for a different purpose from the very inception of the tenancy, here again, reference has in the first instance to be made to the judgment of the Full Bench in Des Raj’s case (AIR 1980 Punj & Har 229) (supra) where it was also laid down that when a demised building identified in the rent note merely as a shop, is put to use exclusively as a god own, it would tantamount to change of user. This being so, there can be no escape from the conclusion, that when a tenant proceeds to use the shop as a godown, he thereby changes the user thereof. On a parity of reasoning, similar would be a case where a shop is used as a workshop:
7. This now brings us to the other aspect of the matter regarding the change of user being from the very inception of the tenancy and it being so to the knowledge of the landlord, namely, the consent of the landlord to this effect being implied otherwise than by writing. A similar question arose with regard to subletting by a tenant where the landlord continued to receive rent without raising any objection to such subletting. When the landlord later sued for ejectment of the tenant on the ground of subletting, it was held by R. S. Sarkaria, J. in Shambhu Datt v. Balwant Lal, (1968) 70 Punj LR 790 that there could be no estoppel against the expressed and clear statutory provision of S. 13(2)(ii)(a) of the East Punjab Urban Rent Restriction Act, 1949, which requires the consent of the landlord to the subletting to be in writing. It is further observed that it would be presumed, therefore, that any other kind of consent i.e. merely by word of mouth, acquiescence or conduct was necessarily excluded.
8. The precise question as has been raised here, namely, change of userto the knowledge of the landlord from the inception of the tenancy arose in Smt. Bhajan Kaur v. Sant Singh (1987) 2 Ren CR 281, where in holding against the tenant, D. V. Sehgal, J. observed, “the mere fact that the respondent started
using the said shop as godown, may be right from the inception of the tenancy, would not absolve him of his liability for ejectment under the Act. Clause (ii)(b) of sub-section 2 of S. 13 of the Act lays down in no uncertain terms that where the tenant has after the commencement of the Act without the written consent of the landlord used the building for a purpose other than that for which it was leased, the landlord shall be entitled to seek his eviction.” A similar view was expressed by the same Hon’ble Judge IB Dhanpati v. Satish Kumar, (1988) 1 Ren CR 163.
9. Mr. Anil Khetarpal, counsel for the tenant, on the other hand, sought to press in aid the judgment of this Court in Baldev Sahai v. Charanjit Lal, (1984) 86 Punj LR 30. In that case, the rent note no doubt described the demised premises as ‘shop’ but the tenant was specifically permitted to use it as per his needs. Use by the tenant of shop as godown from the very inception, it was held, did not render the tenant liable to ejectment on the ground of conversion of user without the written consent of the landlord, as it was held that mere description of the demised premises as ‘shop’ in the rent note did not mean that they were let out only for any commercial or business purposes. The distinguishing feature in this judicial precedent, it will be seen, is provided by the specific term in the rent note permitting the tenant to use the premises as per his needs. Seen in this light, it was clearly not a case of any change of user.
10. Reliance was next sought to be placed upon the judgment of the Supreme Court in Mohan Lal v. Jai Bhagwan, AIR 1988 SC 1034 where the shop had been let out for a liquor vend. When the liquor license was not renewed, the tenant started business there of general merchandise. Here again, it was held that it did not constitute change of user in terms of S. 13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act, 1949. It was being observed, “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 attracts the mischief of S. 13 (2)(ii)(b) of the Act.” Here again, it will be Seen that it was treated as being no case of change of user. This too is thus of no avail to the tenant.
11. A review of the judicial precedents, in the context of the plain meaning of the relevant statutory provisions,” leaves no Joubt, that mere knowledge of the landlord of the change of user, may be even from the 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 thus to be answered accordingly.
12. This petition is now sent back to the learned single Judge, for disposal on merits.
13. Order accordingly.