ORDER
1. This revision petition is directed against the order of the Appellate Authority, Jalandhar dated 25-10-1982 whereby the order of ejectment of Gokul Chand tenant (hereinafter referred to as the tenant) passed by the Rent Controller, Jalandhar, dated 25-11-1980 on the basis of change of user was upheld.
2. In brief facts relevant for the disposal of this petition arc that Shakuntla Devi landlady (hereinafter referred to as the landlady) rented out the demised premises consisting of four rooms to the tenant on 3rd of February, 1966 on payment of monthly rent of Rs. 70/-. Later on the rent was increased to Rs. 100/-by mutual consent and at present the tenant is in possession of the demised premises comprising three rooms, The demised premises were let out to the tenant as Godown for
storing rubber chappals undertaking not to cause impairment or damage to the demised premises in any manner. Eviction of the tenant was sought, firstly, on the ground of non-payment of rent from 1-12-1977; secondly, on the ground that the landlady requires the demised premises for her own use and occupation, as accommodation already in her possession was insufficient for her and her three married sons. Eviction was mainly sought on the ground of change of user on the allegation that the tenant has converted the Godown to a shop for trading purposes without the written consent of the landlady.
3. As arrears of rent together with interest and costs were paid on the first date of hearing the ground for eviction on that account has not been pressed.
4. In the written statement, the tenant pleaded that the demised premises were not required by the landlady for her own use and occupation or for other family members including the married sons. It was next pleaded that the demised premises were rented out to the tenant as Godown for storing rubber chappals and carrying on business of chappals and for storing other material. The tenant further pleaded that he has not converted the Godown into a shop and that he is still using the premises in dispute as a Godown and has been selling the articles in the Godown since the inception of the tenancy and he never changed its user.
5. From the pleadings of the parties, the following issues were framed by the learned Rent Controller:–
1) Whether the respondent is liable to ejectment on the grounds mentioned in para 6 of the ejectment application? O. P. A.
2) Whether the site plan filed by the petitioner is correct? O.P.A.
3) Relief.
6. The Rent controller held under issue No. 1 that the tenant had changed the user of the demised premises by converting the go-down for running a shop without the written consent of the landlady and on that account tenant was liable to be ejected, whereas under
issue No. 2 it was held that the site plan filed by the landlady was correct and this issue was also decided in favour of the landlady. Eviction of the tenant was ordered from the demised premises. On appeal the Appellate Authority upheld the finding of the Rent Controller and maintained the order of eviction passed against the tenant.
7. The learned counsel for the parties were heard.
8. On behalf of the tenant, it was submitted that the premises were let out to him for purpose to use the same as a godown; that the tenant was selling articles in the Godown since the inception of the tenancy and he never changed its user. It was further submitted that the main purpose for the Godown was for storing rubber Chappals for sale; that sale of rubber chappals in a part of the premises is ancillary to the aforesaid main specified purpose and mere fact that the rubber Chappals were also sold in front portion of the Godown abutting the main Bazar would not be sufficient to hold that there was any change of user within the ambit of Section 13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act).
9. Dealing with the question where the premises have been originally leased for a specific purpose, then would any subsequent use thereof, which is a part of or ancillary to, the said specified purpose amount to a change of user within the meaning of S. 13(2)(ii)(b) of the Act, Full Bench of this Court in Sikandar Lal v. Amrit Lal, AIR 1984 Punjab & Haryana 133, answered the same in the negative and held that where premises have been originally leased for a specific purpose, then any subsequent use thereof, which is a part of, or ancillary to, the said specified purpose, would not amount to a change of user within the meaning of S. 13(2)(ii)(b) of the Act.
10. The Full Bench of the Punjab and Haryana High Court in the facts and circumstances of that case held that it was a common ground that the premises were originally leased for the business of handlooms. Thereafter it was used for small carding machine
not occupying a space of more than 4 feet x 4 feet which converted cloth into thread. It was held that there was no change of user. The Full Bench, however, observed that it emerged from the long line of authorities that where the subsequent use of the premises is merely ancillary to the specific original purposes then it would imply no change of user within the meaning of the statute. If by custom or convention or on the finding of the Court it could be held that the added use of the premises was ancillary to the main original purpose then in the eye of law it would be deemed to have been within the terms of the original lease. It was further held that both on principle and on binding precedent it emerged that the specified original purpose could not be, according to the Full Bench extended by adding to it any and every purpose thereto, and the same must be confined within the limitation of being either a part or parcel of or ancillary to, the original purpose.
11. Dealing with the scope of Full Bench in Sikandar Lal’s case (supra), the apex Court in Mohan Lal v. Jai Bhagwan, AIR 1988 SC 1034, observed as follows at page 1036:–
“So far as the High Court held in that case that allied business would not amount to change of user but for a business which is not allied to the business for which it was let out would amount to change of user come (coming) within the mischief of Cl. (b) of S. 13(2)(ii) of the Act, the same must be read with reservation.”
12. It was further observed in Mohan Lal’s case (supra) that the business purposes must be adjudged in the light of the purposes of the Rent Act in question which is to control the eviction of tenants therefrom. In the expanding concept of business now-a-days and the growing concept of departmental stores, we are of the opinion that it cannot be said that there was any change of user in the facts of this case which would attract the mischief of the provisions of S. 13(2)(ii)(b) of the Act.”
13. Reverting to the facts of the case in hand, it is quite apparent from perusal of the Rent Note Ex. A-4 that the demised premises
were let out for the purpose of Godown for storing rubber Chappals including other material etc. The original tenancy was for six months and as no fresh tenancy was created, the tenant occupied the demised premises as a tenant holding over on the same terms and conditions on which the original tenancy was created on 3-2-1966 vide rent note Ex. A-4. According to the plea taken by the tenant in his written statement and the overwhelming evidence produced on the record, including that of Gokal Chand tenant R.W. 1, and statements of sale Exs. R. I to R. 48, there is sufficient reliable material on the record that goods were also sold at the demised premises from the very inception of the tenancy. The fact remains that no written consent was taken from the landlady concerning the change of user, the implied consent, if any, would hardly be of any avail to the tenant. Nor the same would create any estoppel by conduct against the Statute as held in Single Bench authority of this Court in Shambhu Datt v. Balwant Lal, (1968) 70 PLR 790.
In the instant case from the plea taken by the tenant in his written statement as well as from the rent note Ex. A-4, it is quite evident that the dominant use of the premises let out to the tenant was as Godown and not as a shop. In the limited sense that it would also be used for storing of goods meant for immediate sale. It would be convenient to refer to the Full Bench of this Court in Des Raj v. Sham Lal (1980) 82 PLR 647 : (AIR 1980 P & H 229) (FB) wherein it was observed that at page 232(of AIR):–
“Where a demised ‘building’ is identified merely as a ‘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 building’, 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 purposes 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 upkeep like timely repair, timely white-washing etc. but when a building is used as a ‘godown’ which is merely used for dumping goods therein, such an upkeep may neither be possible nor, by implication, envisaged as such.”
14. The view taken by the Division Bench of this Court in Chhaju Ram v. Tulsi Das, (1973) 75 PLR 259: (AIR 1973 Punj 281) was approved by the Full Bench of this Court in Des Raj’s case (supra) wherein it was observed that “the word ‘shop’ did not mean or include a ‘godown’ for the purposes of Section 13(2)(ii)(b) of the Act and the premises which were mentioned as ‘shop’ in the rent note could not without the consent of the landlord be converted into ‘godown’ for storing the goods being sold at other premises by the tenant.”
15. It was observed in Des Raj’s case (supra) that 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.
16. Taking into consideration the legal position as already discussed in the earlier part of the judgment, it is quite apparent that the dominant purpose for which the demised premises were let out to the tenant was to use such premises as a godown and not as a shop or shop-cum-godown. The use of the demised premises for the purpose of sale of stored goods i.e. rubber chappal by the tenant, in the instant case, would amount to change of user and would fall within the mischief of Section 13(2)(ii)(b) of the Act. The use of the premises as a shop for the sale of goods stored in view of the facts and circumstances of the present case, would not merely be ancillary to the specific original purpose for which it was let out i.e. as godown, as contended by the learned counsel for the tenant. Nor from the evidence brought on the file such an inference can reasonably be drawn.
17. The next argument advanced on behalf of the tenant is to the effect that only portion of the demised premises i.e. front portion of the godown abutting the main Bazar was used for sale of goods stored in the remaining portion of the godown and not the entire demised premises which were let out as a godown and as such the tenant was not liable to be evicted under clause (b) subsection 2(ii) of Section 13 of the Act. This aspect of the case was not specifically pleaded in the written statement by the tenant. Thus any evidence led on this aspect of the case which traverses beyond the pleadings of the parties cannot be legally looked into. The argument advanced on behalf of the tenant is thus hardly tenable.
18. Thus for all intents and purposes the tenant is liable to be evicted for change of the user of the demised premises as a shop or shop-cum-godown instead of using it as a godown, without the written consent of the landlady.
19. The orders of ejectment passed by the Courts below do not suffer from any legal error. There is no merit in this petition and the same is accordingly dismissed. The petitioner is granted two months’ time to vacate the demised premises failing which it would be open to the landlady or her heirs to execute the order of ejectment passed against the tenant. As substantial question of law was involved both the parties shall bear their own costs.
20. Petition dismissed.
