Kesho Dass vs Chander Bhan and Others

Gokal Chand Mital, J.—This may be read in continuation of my order dated 7th of November, 1985. In the first para of the aforesaid order the date of rent note Exhibit A, 1 has been typed as 2.6.1983. The correct date is 2.6 1953.

The report of the Rent Controller has been received which is in favour of the landlord. It has been observed in the report that manufacturing activity of trunks was started after a view years of inception of the tenancy apart from carrying on the original business of sale of trunks and that the manufacturing process amounted to change of user as the manufacturing works was the dominant use.

After hearing the counsel for the parties and on consideration of the matter, I am of the view that the learned Rent Controller did not understand the true purpose of the remand order. Hence the matter will have to be considered in detail.

The landlord sought ejectment on one of the pleas of the change of the user of the premises. He pleaded that he had given the shop for sale of trunks but the tenant started manufacturing the trunks as well which amounted to change of user. The case of the tenant in defence was that right from the inception of the tenancy in 1953 he had been carrying on the same process i.e. after manufacturing trunks he sold the same in the premises in dispute. When the case was heard on 7th of November, 1985, it was considered just and proper to give an opportunity to the parties to lead evidence whether the sale of trunks was the dominent purpose or not and whether major part of the premises was used for that purpose. It is not disputed that the onus to prove ground of ejectment is on the landlord and by the remand order he got another opportunity to prove that the change of user, if any, was such on which order of ejectment could be passed against the tenant. This could be done only after the landlord was able to prove that in major part of the premises process of manufacturing of truncks was being carried on and that the dominant purpose for which the premises were put to use was for manufacture of trunks and not for sale. If landlord fails to prove it then he is to fail and it cannot be argued that the tenant failed to establish his defence and, therefore, he should lose the case.

So far as legal position is concerned a Division Bench of this Court in Telu Ram v. Om Parkash Garg1, gave the following verdict:

From the provisions of Section 13(2)(ii)(b) of the Act and the various decisions discussed above, the position emerges out like this:

(a) that if only a small part of a building is used for a purpose other than the one for which it was originally let, that, by itself, may not render the tenant liable to be evicted under the above-mentioned clause. In any case, a tenant would not be so liable if the purpose complained of can be said to be ''part of the purpose for which the premises were originally let,''

(b) that if the result of the use of even a small portion of a building is such that the category of the premises is changed from residential, non-residential and scheduled, and it becomes a category different from the one for which the same had been let, the clause would be attracted ;

(c) that if a substantial part of the demised premises is being utilized for a purpose other than the one for which the same had been leased, the tenant would render himself liable to eviction ; whether, in a particular case, there has been a substantial conversion of the premises for a purpose different from the one from which the same were let, would be a question of fact to be determined in each particular case ;

(d) that in determining whether the change has been substantial or not inter alia it will be necessary for the Court to direct itself to the question whether at the time of letting of the premises the landlord would or would not have agreed to the premises being used for the changed purpose ; and

(e) that if the entire premises are used for a purpose other than the one for which the same were originally let, the change would be attracted.

Then the matter came up before the Full Bench in case Shikander Lal v. Amrit Lal (1984) 86 P. L. R. 367. The matter of dominant purpose was left open by the Full Bench with the result that the aforesaid Division Bench judgment continued to hold the field. However, on facts of the case it was ruled by the Full Bench that setting up of a courding machine was a business ancillary to Khaddie, which was the main purpose of original letting and, therefore, the tenant was not liable to be evicted.

In Firm Himalyaa Traders v. Narain Dass (1966) 68 P. L. R. 367, Mehar Singh C. J. had compared the provisions of Clause (a) of Section 13(2)(ii) of the East Punjab Urban Rent Restriction Act with Clause (b) and the difference was pointed out that while in Clause (a) if a tenant were to transfer his rights under the lease or sublet the entire building or any portion thereof, he on subletting a portion thereof could be ordered to be ejected but under Clause (b) the law framers omitted to mention "any portion thereof" while providiug for ejectment on the ground of using the premises for a purpose other than for which it was leased. Therefore, it was held that if a portion of the premises is used for a purpose other than for which it was leased, ipso facto order of ejectment could not be passed unless it was further proced that the change of user was not ancillary to the purpose of lease and was the dominant use. Similar view was taken in Amin Chand and Others Vs. Gian Chand and Another, . Dharam Chand v. Mathura Dass (1982) 84 P.L.R. 377 and Sagar Mal @ S.M. Aggarwal v. Seeta Ram and Anr. 1930 (1) P.L.R. 33. Therefore, in this back-ground of legal position, the facts brought on record have to be evaluated.

In the ejectment petition the plea raised was that besides selling the trunks the tenant started manufacturing process of trunks as well. On the face of it, if does not show that the dominant purpose for which the premises was being used was manufacturing process. Coming to the evidence, the landlord''s witnesses have stated that the tenant sometime after the lease of the premises started using it for sale and for manufacturing of trunks. No evidence has come on the record to show that the dominant purpose for which the premises is put to use is manufacturing process. Unless this is shown, order of ejectment cannot be passed. As earlier observed, inspite of second opportunity the landlord failed to adduce evidence to show that the business of sale of trunks is ancillary use and dominant use is manufacture of trunks.

In this part of the country, the trunk sellers more or Jess make the trunks themselves and sometimes for pupose of sale they purchase already manufactured trunk as well. Once the business of sale of trunks is to be carried out which would require much space for storage so far as the manufacture part is concerned it can be carried out in a small portion of the premises but the dominant purpose would be to sell the trunks which admittedly both according to the pleadings as well as the landlord''s evidence is being carried on by the tenant. On the peculiar facts of this case I would further held that the manufacture of trunks which is cottage industry for which few implements like hammer and cutting instruments are used and no mechanical process by machine is employed, such work, in my opinion would be ancillary to the dominant purpose of sale of trunks. The observations made by the Full Bench in Shikandar Lal''s case (supra) would amply apply to this case as well.

The premises was let out in 1953. According to the landlord''s evidence couple of years there after the tenant started manufacture of trunks as well. The evidence is that some where in 1985/86 the tenant started manufacturing process, whereas the ejectment application was filed in October, 1972. The tenant''s case is that from the very begining he is carrying on the manufacturing process as well. I am inclined to believe the statement of the tenant and if from the very begining of the tenancy the tenant is using the premises for manufacture of trunk and sale thereof, in 1972, it would be too late for the landlord to urge that the premises was not let out for the purpose of manufacture and sale of trunks. In this view of the matter the point which has been considered above would not fall for determination.

Viewing the case from any angle, I am of the view, that the landlord has failed to bring evidence on record to show if his case falls in category (c) or (d) of the legal position as given in Telu Ram''s case (supra). Having failed to bring the case in category (c) or (d) aforesaid no order of ejectment could be passed against the tenant.

For the reasons recorded above, 1 am of the view that the Appellate Authority erred in law in upsetting the order of the Rent Controller and in ordering the ejectment of the tenant on the ground of change of user.

As a consequence, this revision is allowed, the order of the Appellate Authority is set aside and that of the Rent Controller dismissing the landlord''s application for ejectment is hereby restored. However, the parties are left to bear their own costs.