ORDER
R.L. Anand, J.
1. This is a landlady’s revision and has been directed against the judgment dated 17.1.1983 passed by the Court of the appellate authority under the East Punjab Urban Rent Restriction Act, 1949 (hereinafter called ‘the Act’), who confirmed the order dated 29.1.1982 passed by the Rent Controller, Ludhiana, an dismissed the petition of the landlady Mohinder Kaur under Section 13 of the Act.
2. The brief facts of the case are that Mohinder Kaur filed an ejectment petition under Section 13 of the Act against Baldev Singh seeking ejectment of the tenant from the premises fully described in the head note of the petition by alleging that she is the owner of the property bearing municipal No. B-XIV-2157/19 situated in Mohalla Hargo-bindpura, Ludhiana, and out of this building, the respondent is a tenant in two rooms and one kitchen and common courtyard at the rate of Rs. 110/- per month. The tenant has neither paid nor tendered the arrears of rent from 1.8.1979 upto date nor he paid the house tax levelled by the Municipal Corporation, Ludhiana, further, it was alleged by the landlady that the premises in dispute were let out for residential purposes but the tenant has started work of weaving by installing a handloom in room March ‘A’ shown in the site plan. The premises in dispute are also required by the petitioner-landlady for her personal use and occupation.
3. The said petition was contested by the tenant who denied the allegations. According to the tenant, he took the premises on rent at the rate of Rs. 40/- per month and he paid the rent at this rate upto November, 1980. The petitioner never issued the receipt to him. The petition is not bom fide as the petitioner wanted to enhance the rent. Respondent tendered the arrears of rent at the rate of Rs. 40/- per month from 1.8.1972 to 31.12.1980 in order to avoid the risk of ejectment. The premises in dispute were not rented out to him for any specific purpose and that he had not changed the user of the premises in dispute. The premises in dispute are also not required by the petitioner for her personal use and occupation. Finally, the tenant denied all the allegations of the petitioner and prayed for the dismissal of the petition.
4. The learned Rent Controller framed the following issues for the disposal of the petition:-
“1) Whether the rate of rent in respect of the premises in dispute leased out to the respondent was Rs. 110/-per month? O.A.
2) Whether the respondent is liable to ejectment on the ground mentioned in paragraph 2 of the ejectment application? OPS.
3) Whether the present application is mala fide? OPR.
4) Whether the present eviction application is bad on account of its being for partial ejectment? OPR.
5) Relief.”
5. The parties led oral and documentary evidence in support of their case and finally the Rent Controller vide order dated 29.1.1982 dismissed the ejectment petition.
6. Aggrieved by the order of the Rent Controller, the landlady filed an appeal under Section 15 of the Act, which was also dismissed by the appellate authority vide judgment dated 17.1.1983.
7. Aggrieved by the said order, the present revision.
8. 1 have heard Ms. Himani Sarin, Advocate, on behalf of the petitioner and Mr. Adarsh Jain, Advocate, for the respondent and with their assistance have gone through the record of this case.
9. The principle argument which was raised by learned counsel for the petitioner is that the tenant has changed the user of the property. According to her, it stands proved on the record from the report of the Local Commissioner who inspected the site that in one of the rooms, the respondent-tenant has installed a handloom and, in these circumstances, he has changed the user of the building. The counsel submitted that the tenancy in this case consisted of two rooms and one kitchen and out of these two rooms, the tenant has installed a handloom in one of the rooms. 50 per cent of the residential tenancy is being consumed by the tenant for commercial purposes and it should amount to change of the user of the building giving right to the landlord to seek ejectment. The counsel also submitted that it is from the landlady’s point of view, it is to be seen by the courts whether the tenant has changed the user of the property or not. In support of her contention, the learned counsel for the petitioner relied upon Bakshi Singh and Anr. v. Naubat Rai, 1969 All India Rent Control Journal 117, where it was held that where the premises in dispute had been taken on rent for selling chaffcutters (tokas) and subsequently, the tenant started manufacturing spare parts there and had, thus, used the building for a purpose other than that for which it was leased, he made himself liable for ejectment under the provisions of Section 13(2)(ii)(b) of the Act. In para-8 of the judgment, it was held as follows:-
“In the instant case, as I have already said, the dominant purpose for letting out the shop was sale of toka machines and the tenant was now using almost half of the entire premises as a workshop i.e. for the manufacture of the spare parts of toka machines. It could, thus, not be held that the dominant purpose of letting out had not been changed by the tenant. The premises had been used for a purpose than that for which they were leased within the meaning of sections 13(2)(ii)(b) of the Act.”
10. The counsel for the petitioner also relied upon Telu Ram v. Om Parkash Garg, (1971)73 P.L.R. 1, where it was held as follows:-
“Held, that the basic idea of clause (b) of Section 13(2)00 of the East Punjab Urban Rent Restriction Act is that the tenant should not be allowed to make use of a building for a purpose for which the landlord may not have agreed to give the same on lease. A landlord may have no objection to giving a shop on rent to a person who wants to carry on the business of sale of books and stationery or other general merchandise, but may not like to let out the same to a person who wants to carry on the business of a halwai or any other business. So the Act, in a way provides that the landlord and tenant may agree between themselves as to the purpose for which the building would be used, and if later on the tenant wants to use the premises for a different purpose, he must obtain the consent of the landlord to do so. In order to take this matter beyond all controversy it has been provided that such a covenant should be in writing.”
11. I have considered the submissions of the learned counsel for the petitioner and I am not in a position to accept the same. It is the common case of the parties that the tenancy in question consisted of two rooms including room Mark ‘A’ shown in the site plan, one kitchen and courtyard. It is also the common case of the parties that in order to install a handloom no power is required. Handloom can be operated manually. If the dominant purpose of the rented premises remains residential, in that eventuality, it cannot be said that there is a change of user.
12. In Bakshi Singh’s case (supra), the rented premises were given for the purpose of selling tokas. The tenant started manufacturing spare parts of the toka machine which requires electric energy. In that context, it was held that the tenant has changed the user of the property. Had in the cited case, it was made known to the landlord that his tenant, ultimately, would run a factory for the purpose of manufacturing spare parts with the assistance of electric energy, the landlord would be the last person to rent out the premises. Here is a case where the purpose of the tenancy has not been defined. Moreover, the dominant propose of the rented premises remains residential.
13. Telu Ram’s case (supra) too is not of much help. In this very case, it was held that conversion of a very small portion of the premises for a purpose which could be said to be different from the one for which the premises were originally let, may not render the tenant liable to eviction under Section 13 of the Act.
14. On the other hand, the learned counsel for the respondent placed reliance upon Prem Chand v. District Judge, Dehradun and Anr., 1977 R.C.R. 471, and submitted that if the dominant purpose of the tenancy has not been changed by the tenant, the ejectment cannot be granted. In the cited case, the tenant had occupied two rooms in the tenancy and opened a tailoring shop in one of the rooms arid the said room was also being utilised as a bed-room. In these circumstances, it was held by the Hon’ble Supreme Court that the tenant is not liable for the change of user. In the present case also, the case set up by the landlord and proved one, is that the tenant has installed a handloom. We all known that handloom does not require any permanent fixture and it can just be placed on the floor. It hardly covers a space of 6ft. x 4ft. No commercial activity is involved. The weaver of a handloom just prepares the cloth. Wither he sells the same in the market or he supplies it in the market if he is carrying a contract job. The judgment relied upon by the counsel for the respondent is quite near to the facts in hand.
15. The learned counsel for the respondent, then, relied upon Shri Sagar Mal alias S.M. Aggarwal v. Shree Seeta Ram arid Anr., 1980(1) R.L.R. 33. In this case, the building was let out to the tenant consisting of three rooms for business purposes and one room of the demised premises was used for residential purposes. In these circumstances, it was held that if the dominant purpose remains the same, it will not amount to change of user.
16. The counsel, then, relied upon M.K. Palaniappa Chettiar and Anr. v. A. Pennuswami Pillai, 1970 R.C.R. 393, wherein it was held that if a portion of the building which has been used for cooking was very negligible while the rest of the building was being continued to be used for the purpose for which it was taken on lease, it will not amount to change of user.
17. The counsel for the respondent further relied upon Chand v. Mathura Dass, 1981(2) R.C.R. 486. In this case also, the allegations against the tenant were that he took the shop on rent for bakery business but started residing in a portion of the shop with his family for the satisfactory running of the business and it was held by this Court that the tenant is guilty of change of user if he uses the entire building or major portion thereof for a purpose different from the purpose of letting. Using of a small portion for a purpose different than the purpose of letting, does not amount to change of user. In the case in hand, of course, the tenancy consisted of two rooms besides a kitchen and a court yard. In one of the rooms, handloom has been installed by the tenant as proved on the record. There is no evidence on the record proved by the landlord that this room is exclusively used for weaving purposes. In these circumstances, it cannot be said that 50% of the demised premises had been changed for commercial purposes or that the major chunk of the demised premises has become commercial.
18. Lastly, reliance was placed on Sant Ram v. Rajinder Lal and Ors., A.I.R. 1978 S.C. 1601. In this case also, the shop was given on lease to a cobbler. The purpose was not disclosed in the lease deed. The cobbler started using a part of the demised premises for some days for cooking and staying during night. In these circumstances, it was held that there is not change of user. In the present case also, there is no written tenancy from which the purpose of demised premises could be ascertain. Even if it is taken that the purpose of tenancy was residential, still it has to be seen whether the dominant purpose remains the same or not. It is proved on the record that the tenant is residing in these very premises along with his family members. In the case of Sant Ram (supra), it was held as under:-
“It is impossible to hold that, if a tenant, who takes out petty premises for carrying on a small trade, also stays in the rear portion, cooks and eats, he so disastrously perverts, the purpose of the lease. A different ‘purpose’ in the context is not minor variations but majuscule in mode of enjoyment. This was not a case of a man switching over to a canteen business or closing down the cobbler shop and converting the place into a residential accommodation. On the other hand, the common case is that the cobbler continued to be cobbler and stayed in the shop at night on days when he was running his shop but left for his home on shop holidays. A sense of proportion in social assessment is of the judicial essence. The irresistible inference was that the provisions of Section 13(2)(ii) had not been attracted.”
19. In the light of my above discussion, I am of the opinion that the tenant has not changed the user of the property and, as such, he has not become liable for eviction.
20. Let us examine the case from another angle. Under the Act, the landlord is entitled to seek eviction of the demised premises, if he proves that the tenant has committed, such acts which are likely to impair materially the value or utility of the property. No doubt, the landlord is not seeking the eviction of the tenant on this ground but this aspect of the case should also be examined when a landlord seeks the eviction of a tenant on the ground of change of user. If the tenant has committed such acts which have impaired the value and utility of the property and from which a reasonable inference can be drawn that it would also amount to a change of user of the property, the rent controller of the appellate authority is not debarred from examining the case from that angle. In the present case also, I have examined this aspect. At the cost of repetition, it is stated that the allegation of the landlord is that the respondent has installed a handloom in one of the rooms of the tenancy. Would such an act is likely to impair the value and utility of the property materially? The answer is no If this is the factual position, it will also strengthen my opinion when I have held above that the tenant has not changed the user of the property.
21. Resultantly, I do not see any merit in this revision and the same is hereby dismissed. No costs.