Nand Lal vs Dr. Gurbakhsh Rai

Falshaw, J.—This is a tenant''s revision petition against an order for his ejectment from the premises in suit passed by the Rent Controller and upheld by the Appellate Authority.

The premises in suit are a shop where the tenant carries on business as an optician. The grounds for ejectment were u/s 18(2)(ii)(b)(iii) and (iv) of the East Punjab Urban Rent Restriction Act, all these grounds being based on the fact, which appears to have been established beyond doubt, that the tenant has begun using the back portion of the shop, which measures 20" x 9" as a kitchen for cooking his food. He is apparently a widower. On these facts it was alleged that the tenant has used the building for a purpose other than that for which it was leased, that he had committed acts likely to impair materially the value or utility of the building and that he had been guilty of such acts and conduct as were a nuisance to the occupiers of buildings in the neighbourhood. All three grounds were upheld by the Rent Controller and the first two by the learned Appellate Authority who did not comment on the third.

In my opinion, the whole decision proceeds on a wrong basis. The only person who claimed that the use of that part of the shop as kitchen created any nuisance was the landlord himself, and in my opinion that is not sufficient to attract the provisions of clause (iv) in sub-section (2) as it certainly is not proved that there is any nuisance to the occupiers of buildings in the neighbourhood. The finding regarding impairing materially the value or utility of the building is based simply on the fact that in the portion of the shop used as a kitchen there are some marks of smoke on the walls, and since this can easily be put right with a little cleaning and a coat of whitewash it is quite impossible to say that the value or the utility of the building has been materially impaired.

The main question, however is whether the tenant, who still carries on his own business us an optician in the major portion of the shop, can be said to have used the building for a purpose other than that for which it was leased simply because he finds it convenient to cook his meals in small portion of the premises, there being no allegation whatever that any food is cooked for any one other than the tenant himself or for the purpose of sale. In my opinion the view of the Rent Controller and the learned Appellate Authority that this is using the premises for a purpose other than that for which they were leased is quite wrong and indefensible. When, in the course of arguments, I suggested that in case the view taken was correct then even eating his meals at the shop by the tenant might amount to using the premises for a purpose other than that for which they were leased, the suggestion was not taken seriously, but in my opinion if the tenant could eat his meals at the shop he could also cook them there without changing the nature of the premises or the use to which they were put. I accordingly accept the revision petition and set aside the order for the ejectment of the petitioner and dismiss the landlord''s petition with costs throughout.