JUDGMENT
Viney Mittal, J.
1. The tenants are the petitioners before this Court. Order of ejectment passed by the learned Rent Controller as well as the learned appellate authority have been impugned by them.
2. The landladies Smt. Krishna Kumar and Smt. Khazano Devi filed an ejectment petition against the present petitioner M/s Gian Chand and Sons and M/s Durga Confectionery Store on November 5, 1984. The ejectment of the tenants was sought on the ground of change of user of the premises in question and that a portion of the premises had been sublet by Gian Chand to M/s Durga Confectionery Store without the written consent of the landladies.
3. The landladies pleaded that the premises in question had been given to Gian Chand for the purpose of running Karyana and Provisions business as per the compromise arrived at between the parties in the previous litigation on January 2, 1984 at a monthly rent of Rs. 1,000/-. It was claimed that Gian Chand had started using the premises in question for a purpose other than for which the same had been let out to him and had started the wholesale business of fire works and had stocked the heavy quantity of fire crackers during Diwali season of 1984, a fire broke out in the premises and a fire brigade had to be called and the fire was controlled with great difficulty. It was further pleaded that Gian Chand had obtained a licence under the Indian Explosives Act for possession of 500 Kgs. of fire crackers and had stocked the aforesaid heavy quantity against the licence. It was further claimed that Gian Chand had sublet the portion of the premises and had parted with the possession in favour of M/s Durga Confectionery Store without the consent of the landladies. On the aforesaid two grounds the landladies sought the ejectment of the tenants from the premises in question.
4. The aforesaid ejectment petition was contested by the respondents. Although it was admitted that through a compromise arrived at between the parties a fresh tenancy commenced between the parties and the tenants were to carry on the business of Confectionery and Karyana shop at a monthly rent of Rs. 1,000/- but they denied that they had changed the user of the premises in question. It was claimed that the tenants were doing the same business as was being done by earlier. It was also pleaded by the tenants that licence under the Indian Explosives Act had been obtained for stocking of the said goods at 257, Ram Darbar, Phase II, Chandigarh. A concern run by the tenants. With regard to the plea of subletting, the tenants maintained that the business of M/s Durga Confectionery Store was being run by the son of Gian Chand and there was no subletting of the premises and the aforesaid business in the name of Durga Confectionery Store was being run much prior to the compromise arrived at between the parties.
5. The learned Rent Controller held that there was no subletting of the premises by Gian Chand in favour of M/s Durga Confectionery Store and even Gian Chand is a partner in the aforesaid firm and as such there was no subletting. However, the learned rent controller further held that there was a change of user of the premises, inasmuch as, the business of fire crackers was also being run and, therefore, since the said business of selling fire crackers was not ancillary to the business of selling confectionery goods, therefore, it was concluded that the tenants had used the demised premises for a purpose other than which the same had been let out. On the basis of the aforesaid findings, the ejectment of the tenants was ordered.
6. The tenants filed an appeal against the order of ejectment. Even the landladies filed an appeal against the order of the rent controller whereby their plea with regard to subletting was rejected. Both the aforesaid appeals were clubbed together by the learned appellate authority. The learned appellate authority re-affirmed the findings recorded by the learned rent controller. Accordingly, it was held that there was no subletting by Gian Chand in favour of M/s Durga Confectionery Store. Similarly the findings with regard to change of user recorded by the Rent Controller were also upheld. Consequently, both the appeals filed by the landlady as well as by the tenants were dismissed. Accordingly, the order of ejectment passed by the learned Rent Controller was upheld.
7. The tenants have now approached this Court through this present revision petition.
8. I have heard Shri M.L. Sarin, the learned senior counsel appearing for the tenant-petitioners and Shri R.K. Battas, the learned counsel appearing for the landladies and with their assistance have also gone through the records of the case.
9. At the outset, it may be noticed that on an earlier occasion while this case was heard by V.S. Aggarwal, J. (since retired) on February 17, 2000 it was realised that the document Ex.PW 3/1 is not available on the record, although a mention thereof has been made in the statement of PW3. Accordingly, the District Judge, Chandigarh was directed to report about the said document. A report dated July 31, 2000 was received from the District Judge, Chandigarh. It was reported that the aforesaid document was not traceable on the file. Accordingly, a request made by the Civil Judge (Junior Division), Chandigarh for reconstruction of the said document was forwarded. On the aforesaid request, vide order dated September 20, 2001 directions were issued by this Court to the Record Keeper, Office of the Deputy Commissioner, Licencing Branch, Estate Office, Chandigarh to produce the register for the year 1984-85, containing entry No. 24, with the application of M/s. Durga Confectionery Store.
10. In pursuance to the aforesaid directions, Dev Ram Sharma clerk of the Deputy Commissioner’s Office appeared before its Court on May 1, 2002. His statement was recorded and he was even permitted to be cross-examined by the learned counsel for the tenants. He also produced a certificate Ex.C1 showing that the application of M/s. Durga Confectionery Store is not traceable in the office due to shifting of records of Licence Branch many times. However, he produced the photocopy of entry No. 24 of the register of the year 1984-85, being the summoned record. The said photocopy was taken on record and marked as Ex.PW3/1.
11. Shri M.L. Sarin, the learned senior counsel appearing for the tenants, has vehemently argued that orders of ejectment passed by the authorities below are not only contrary to the record but are based upon such inferences which were wrongly drawn from the facts and documents on the record. Accordingly, it has been contended that the aforesaid orders passed by the appellate authority were liable to be set aside. In support of the aforesaid contentions, the learned senior counsel has drawn my attention to the pleadings of the parties, their oral evidence as well as certain documents. Firstly, it has been contended by the learned senior counsel that a plea had been taken by the landladies in their ejectment petition that the tenants had started the aforesaid business in the premises without the consent of the landladies. The aforesaid plea taken by the landladies was denied by the tenants, when they specifically pleaded that they had been doing the same business in the premises which was being done by them earlier and that the licence under the Indian Explosive Act had been obtained for stocking of the said goods at 257, Ram Darbar, Phase II, Chandigarh. Accordingly, it has been contended by the learned senior counsel that the landladies were required to prove that the aforesaid licence had been obtained by the tenants for the demised premises and since the aforesaid fact has not been proved, the ejectment of the tenants could not be sustained. It has further been argued by the learned senior counsel that even if it be taken that the licence in question pertained to the premises in dispute and that the business of selling of fire crackers was being run by the tenants, still me aforesaid fact does not lead to an inference that there was any change of user by the tenants, inasmuch, as, admittedly the premises in question had been let out for the purpose of running of a Karyana shop as well as for selling of confectionery goods. On that basis, it has been maintained by the learned senior counsel that sale of fire crackers would also be a business which would be covered under the business of Karyana shop and since the said business was merely a seasonal business, therefore, it could not be taken that there was any change of user by the tenants.
12. On the other hand, Shri R.K. Battas, the learned counsel appearing for the respondents has argued that the evidence on the record showed that the tenants were carrying on the business of sale of fire crackers in the premises in question and the aforesaid business could not be treated to be ancillary or incidental to the business of sale of karyana goods or confectionery goods. Shri Battas has laid emphasis on the incident of fire on October 24, 1984, when there was a huge fire in the shop in question which could be controlled with a great difficulty. Shri Battas has also placed reliance upon the statement of Dev Ram Sharma, which was recorded in this Court on May 1, 2002 and has also relied upon the document Ex.PW3/1 which shows that an explosives licence had been issued in the name of Durga Confectionery Store. My pointed attention has been drawn to the statement of Dev Ram Sharma wherein he has specifically stated that the licence relates to the place for which the licence has been issued and that in the register, address indicated pertained to the premises for which the licence had been granted. It has further been argued by the learned counsel for the landladies that there was no material brought before the Court which could show that the findings recorded by the authorities below or the inferences drawn were erroneous in any manner.
13. I have give my thoughtful consideration to the rival contentions of the learned counsel for the parties.
14. At the outset, it may be noticed that the controversy with regard to the ground of subletting is no more alive between the parties. In that regard, findings recorded by the authorities below have not been assailed by the landladies in any manner. Thus, the only ground which needs to be examined is the ground of change of user.
15. Certain facts are not in dispute. It is not in dispute that a compromise dated January 2, 1984 was entered between the parties. The premises in question had been freshly let out by the landladies to the tenant Gian Chand for the purposes of running of karyana and provisions business. It is also not in dispute, as has been admitted by the tenants themselves in the written statement, that a licence under the Indian Explosives Act had been obtained by them subsequently. However, their plea was that the aforesaid licence had been obtained for stocking of the said goods at 257, Ram Darbar, Phase II, Chandigarh. It has also come on record that a fire broke out in the premises in question in the month of October 1984. The perusal of the licence Ex.PW3/l further shows that the aforesaid licence had been issued for possession of 500 kgs. of explosives. The aforesaid quantity was obviously a very heavy quantity. In these circumstances, it was for the tenants to have proved the plea taken by them that the licence had been obtained by them, not for the premises in question but for some other premises situated in Ram Darbar, Phase II, Chandigarh. There is no such evidence available on record led by the tenants.
16. On the other hand, specific statement of Dev Ram Sharma when he appeared before this Court on May 1, 2002 shows that the address relates to the place for which the licence had been issued. As a matter of fact, the said witness was permitted to be cross-examined by the learned senior counsel for the tenants. It was during the aforesaid cross examination that the entire position was clarified by him. The statement in cross-examination of the aforesaid witness may be noticed as follows:
“XXX Cross-examination by Mr. M.L. Sarin,
Sr. Advocate.
Q. Does the register in respect of entry No. 24 disclose the address of the applicant or the address of the site for which the licence has been issued?
Ans. The address relates to the place for which the licence has been issued.
Que. Can you see the entries preceding the entry in question and the entries which succeed the entry in question to assert the basis of your answer to the first question?
Ans. This Understood.
Que. Have you made this entry? Ans. No.
Que. Is postal address different from the place for which the licence is granted?
Ans. In the register, the address indicated pertained to the premises for which the licence has been granted.
Que. I put it you that the address indicated in the register against column No. 25 is the postal address of the applicant for the licence and not the address of the premises for which the licence is issued.
Ans. The aforesaid suggestion is incorrect.”
17. The statement of the aforesaid witness does not leave any manner of doubt to the fact that the licence in question pertained to the premises in dispute. The evidence on the record further shows that the fire crackers in large quantity were stored in premises in question itself, by the tenants. The word “Karyana goods” is not a word of any technical nature. It has to be understood as the same is being used in common parlance. In common parlance word “Karyana goods” is used for sale of such goods which are used in every day use for house-hold purposes. The fire crackers do not fall in that category. In these circumstances, it cannot be suggested that sale of fire crackers and storage of large quantity thereof by the tenants could also be included mean sale of karyana goods by them. That would be beyond the intention of the parties at the time of compromise. As a matter of fact, it was for the tenants to have pleaded and even proved the aforesaid fact that at the time of compromise the parties had agreed that the tenants could be permitted to use the premises for storage and sale of fire crackers.
18. Shri M.L. Sarin, the learned senior counsel has placed reliance upon various judgments of the Apex Court as well as of this Court. A strong reliance has been placed upon Rattan Lal v. Asha Rani, 1988 Haryana Rent Reporter 625 (Supreme Court). In that case, question before the Supreme Court was as to whether a tenant who had been running a grocery shop in the premises given for that purpose and had started a book shop, could be held guilty of change of user. The said change business was held to be not a change of user. A further reliance has been placed on the case of Mohan Lal v. Jai Bhagwan, (1988-1) 93 P.L.R. 670 (S.C.) wherein the Apex Court had laid down that in the expanding concept of departmental stores, running of a liquor shop in the shop let out for general merchandise could not be held to be change of user. However, the observations made by the Apex Court in Mohan Lal’s case (supra) may be noticed:
“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 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 attracts the mischief of Section 13(2)(ii)(b) of the Act. The High Court therefore, was in error”
It is, thus clear from the law laid down by the Apex Court that the change of user has to be viewed from the angle that the aforesaid user would not cause any mischief or detriment or impairment of the shop in question. Thus, the test of find out is, as to whether there was any change of user or not and as to whether the aforesaid change of user had led to any mischief or impairment of the shop or detriment of the same in any manner. Obviously, in the present case, storage of a huge quantity of fire crackers and sale thereof has caused a mischief, detriment and impairment of the shop by causing a danger to the same. This cannot be permitted. The business of storage and sale of fire crackers cannot be inferred to be an ancillary business to that karyana goods or confectionery items.
19. Reference may also be made to judgment of this Court in the case of Ghansham Dass v. Gurdwara Shri Guru Nanak Sat Sangh Sabha Regd. Sonepat, 1983(1) Rent Law Reporter 664. In the aforesaid case, a shop had been let out for general business. The tenant later on changed the aforesaid business and started selling oxygen gas cylinders. It was held by this Court that the business of general merchandise did not include the business of selling of oxygen gas, which business was of a dangerous material and therefore, the said change of business amounted to change of user by the tenant. The observations made by this Court in the aforesaid case may be noticed:
“The authorities relied upon by Mr. Ram Rang are clearly distinguishable. In all the cases cited above, the change of user did not imply change of business in dangerous material. It is a matter of common knowledge that oxygen is highly inflammable. When Cylinders full of this gas are kept in a shop there are greater possibilities of their catching fire by accident. Even original user is not specified and the shop is let out for business, that would imply that the shop is being acquired by the tenant for carrying on a business in innocuous articles. When that user is changed in the sense that highly inflammable articles for sale are kept in the shop, it shall have to be held that there is a change of user which disqualified the tenant to retain the shop as a tenant.”
20. Accordingly, I do not find that the findings recorded by the authorities below or the inferences drawn by them on the basis of the material available on the record are erroneous in any manner, requiring this Court to interfere in the present revision petition.
21. No other point has been urged.
22. Accordingly, I do not find any merit in the present revision petition and the same is dismissed. However, the tenants are granted three months time to vacate the premises in dispute and hand over the vacant possession thereof to the landladies subject to their depositing the entire arrears of rent alongwith the rent for the three months aforesaid, within a period of one month from today.
