Madan Mohan Manchanda vs Dr. K.P. Sharma

V.S. Aggarwal, J.—The present revision petition has been filed by Madan Mohan Manchanda, hereinafter described as ''the petitioner", against the order passed by the learned Rent Controller, Chandigarh, dated 2.8.1996, and the learned Appellate Authority, Chandigarh, 3.9.1998. The learned Rent Controller had passed an order of eviction against the petitioner and the appeal filed against that order was dismissed.

The relevant facts are that respondent Dr. K.P. Sharma had filed a petition for eviction against the petitioner with respect to the premises in question. The sole ground which seeks consideration in the present revision petition is as to if the petitioner had changed the user of the property contrary to the original purpose of letting. The respondent''s case was that the property was let to the petitioner at a monthly rent of Rs. 1,000/-. The purpose of letting was residential/domestic. The petitioner was stated to have installed machinery and has erected Bhatties and started manufacturing Reories and certain salty items in the premises. In other words, it was asserted that the property is being used for commercial purpose without the consent in writing of the respondent-landlord.

The petitioner contested the eviction application. It was the claim of the petitioner that the property had not been let for any specific purpose. Right from the very beginning, the suit property is being used for running of the business. The petitioner has never used the property for residential purpose and thus there is no misuser of the premises.

The learned Rent Controller held that the rent note Mark-A was signed by both the parties. It could be used for collateral purpose and accordingly the purpose of letting could be identified from this agreement. It was held, therefore, that the property in question was let for residential purpose. It was being used for manufacturing of Reories and Gajak and running of a ration depot. Accordingly, order of eviction on the said ground was passed.

The petitioner preferred appeal. The learned Appellate Authority held that the said agreement Mark-A has not been proved and on the basis of that purpose of letting could not be inferred. However, the learned Appellate Authority went into other evidence on the record. It was held that the lease agreement Exhibit R-2 and R-3 describe the property as Tabela house and Tabela respectively. Tabela was stated to be a word which was commonly used for tethering of cattle and horses. The cattle room was separate. It was concluded that once it is so, the purpose of letting must be taken to be residential because it has been mentioned as Tabela house. Accordingly, the order of eviction was approved.

Aggrieved by the same, present revision petition has been filed.

Reliance on behalf of the respondent had been placed on the document Mark A so as to establish that the purpose of letting had been settled to be residential. The main question in controversy that arises is not that it could be looked for collateral purposes, whether the document as such has been proved in accordance with law or not. It is in the statement of the respondent-landlord that at the time of execution of this agreement, Janak Raj and Gurdev Kaur were present. He made no statement that it is signed by the petitioner-tenant. Janak Raj was the person in whose presence this rent agreement is said to have been signed is not a witness to this agreement. The said agreement was not even put to the attorney of the petitioner when he appeared as a witness.

Before a document can be read in evidence, it must be proved in accordance with law. When the document has not been shown to be signed by the petitioner-tenant and the respondent-landlord was feeling shy in putting it to the tenant, the net result would be obvious that it cannot be termed or held that this document had been proved or on basis of the same it could be said that it was let for residential purpose.

Two rent agreements Exhibit R-2 and R-3 have been proved on the record. In Exhibit R-2 the property has been described to be Tabela house, while in Exhibit R-3 it has been shown to be Tabela. When the property is described as a Tabela house, it certainly does not refer to a residential house. Tabela is known to be a place where cattle or horses are tied. If there is any room to be used for cattle shed or to give protection to the horses or cattle then it does not become a residential house. The description of the property as is apparent from the aforesaid is not residential in nature. In these documents, the purpose for which the property can be used has not been given.

When the purpose of letting is not settled in writing and oral evidence itself is self serving, then the purpose of letting can be determined on the basis of nature of the premises, user thereto and all surrounding circumstances. Full Bench decision of the Madras High Court in the case of T. Dakshinamoorthy Vs. Thulja Bai and Another, provides the guide-lines in this regard to the same effect.

On behalf of the respondent, reliance strongly was placed on the decision of this Court in the case of Inder Singh Chopra of Narwana v. Jaidev Gopal 1989 HRR 595. In the cited case, the property in question had been let. In the rent note it was described as a house. The question arose as to what was the purpose of letting. This Court taking note that it was let as a Makan/house concluded that it was a residential house. The position in the present case is different. Herein, the property has not been described as a house but as a Tabela. Thus, the decision referred to and thought so much on behalf of the respondent does not come to his rescue.

In that event, reliance was placed on the decision of the Supreme Court in the case of Shrinavas Kasherlal Palod and Ors. v. Vithal Shivagir Gosavi and Ors.1995 HRR 315. In the cited case, the land was let out for storing of onions which was a non-agricultural purpose. The tenant started using the land for agricultural purpose. Supreme Court held that long user will not change the purpose of letting. But perusal of the cited judgment clearly shows that the provisions of the Bombay Rent, Hotel and Lodging House Rates Control Act, 1947 are different. Therein, an order of eviction could be passed if the Controller is satisfied that the tenant has committed any act contrary to the provisions of Clause (a) of Section 108 of the Transfer of Property Act. Again, the purpose of letting was admittedly settled and, therefore, the question of change of use came into being. The controversy in the present case is as to what was the purpose of letting. Consequently, the said decision, indeed, will not come to help the respondent.

What is the factual position herein? It is obvious that the learned Appellate Authority fell into a grave error and committed a legal impropriety while . reading the rent agreements Exhibit R-2 and R-3 erroneously. Tabela could not be taken to a property let for residential purpose. Not only that, it is admitted by the respondent that the property is being used for commercial purpose. It was admitted further by the landlord during evidence that the petitioner did not live in the suit premises. Thus, the user cannot be taken to be residential. Even the respondent''s witness PW2 Janak Raj admitted that he had never seen the father of the petitioner residing in the suit premises. These factors lead to the abovesaid conclusion that the property was not let for residential purpose but it was let for commercial purpose.

It has transpired in evidence that the locality is residential. But that is not the conclusive factor. The other surrounding circumstances cannot be ignored. Receipts had also been issued in the name of Manchanda Confectionery. This fact was not disputed. Taking stock of these facts, namely, surrounding circumstances coupled with the user of the property referred to above, it must be held that the property was let for commercial purpose. The findings of the learned Rent Controller and the learned Appellate Authority were erroneous and were not based on evidence. Necessarily, these must be set aside.

For these reasons, the revision petition is allowed and the eviction order impugned is set aside. Instead, eviction petition is dismissed.