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Judgment
Sengottuvejan J.
This civil revision petition in filed by the landlord in respect of Door No. 7, North Chitrai Street, Madurai, against the orders of the appellate
authority and the Subordinate Judge of Madurai passed in Civil Miscellaneous Appeal No. 278 of 1972 on the file of the Appellate Authority.
Originally the civil revision Petitioner herein, who is the landlord; filed a petition in Rent Control Original Petition No 408 of 1971 on the file of
the Rent Controller District Munsif of Madurai Town against the Respondent herein who is the tenant a(sic)eeking eviction on the ground that the
tenant committed acts of waste and also on the ground that the tenant had put the premises to a different user other than that for which it was
leased out. The landlord also prayed for eviction on the ground that the tenant had locked the premises for more than one year.
The learned Rent Controller after going through the evidence in this case, came to the conclusion against the landlord on the ground of acts of
waste and on the ground that the tenant used the premises for a different user other that for what it was based out and allowed the petition on the
ground that the tenant locked the premises for more than one year. As against the orders of the learned Rent Controller, the tenant filed an appeal
in Civil Miscellaneous Appeal No. 278 of 1972 on the file of the appellate authority and the Subordinate Judge, and the appellate authority alleged
the appeal on the ground that the premises is not locked but it was used by the tenant as a godown for the purpose of his business and the building
is in use and as such, it cannot, be said that the tenant had locked the premises and dismissed the rent control petition.
As against the orders of the appellate authority in Civil Miscellaneous Appeal No. 278 of 1972, the landlord filed Civil Revision Petition No.
3237 of 1975 on the file of this Court. When the Civil Revision Petition No. 3237 of 1975 came before Suryamurthy J., the same was remanded
to the appellate authority for a finding whether the building has been put to a different user and also whether storing the soda manufactured
elsewhere will amount to a different user.
The appellate authority, after remand, considered the matter afresh and was pleased to allow the appeal. As against the order of the appellate
authority, the landlord herein filed the present civil revision petition, which is pending for the past three years. Though the Respondent engaged a
Counsel for this case, when the matter was taken up yesterday and today, there was no representation on behalf of the Respondent-tenant. Hence
the absence of the tenant is recorded and the matter is proceeded with.
The appellate authority came to the conclusion that it cannot be said that the tenant had put the building to a different user other than the purpose
for which it was leased out and allowed the appeal in favour of the tenant. The main reasoning of the appellate authority in coming to the conclusion
are mainly these (1) The lease is admittedly for non-residential purpose Manufacturing soda and storing the same are both non-residential purpose
and the fact that the tenant had used the premises for storing soda after stopping the manufacturing of soda will a still be a use for non-residential
purpose, the same cannot be said to be a purpose other than for which it was leased out. (2) In any event the purpose for which the premises was
leased out to the tenant, is, for the manufacture of soda. and storing soda in the premises cannot be said to be a different purpose than the one for
which it was leased out. No distinction can be made between manufacturing of soda and storing the same in the premises. (3) In view of the fact
that the premises being used as a godown for the purpose of storing aerated water, it cannot be said that the tenant had locked the premises.
The above said views of the appellate authority are challenged in this civil revision petition. Before considering the arguments on behalf of the
civil revision Petitioner, certain admitted facts may be stated. There is no written rent deed in this case. But, it is admitted that the lease was granted
to the tenant by the civil revision Petitioner''s predecessor-in-title originally for the purpose of conducting soda manufacture in the name and style of
Imperial Soda Factory. The present civil revision Petitioner got a sale of the property from his sister and after sale in favour of the civil revision
Petitioner, the Respondent herein purported to have executed a rent deed in respect of the soda factory business carried on in the premises. But,
the Rent deed is not forthcoming. However, it is admitted by both sides that the purpose for which the premises was let out is for conducting soda
factory. It is in evidence that the tenant, the Respondent herein ceased to manufacture the soda in August 1968 in the petition mentioned premises.
It is also in evidence that the Respondent herein had been manufacturing soda in two places in Madurai and Ramanathapuram and that in 1968 he
stopped manufacturing soda at Madurai, but he is continuing the manufacture of soda at Ramanathapuram and that he used to transport the soda
manufactured at Ramanathapuram and store the same in the petition mentioned premises for the purpose of sale. As against the evidence of the
tenant, the landlord deposed that he saw only deal wood boxes being dumped and that he has not gone into the premises and seen what exactly
was contained in the deal wood boxes because, the premises was locked. The appellate authority also observed during the course of its order that
since the landlord had not let in positive evidence as to the purpose for which the premises was put to use and shown that such a purpose is
different for one for which it was leased out, the landlord had not succeeded in showing that the premises was put to a different use.
In the civil revision petition, it is contended that even on the basis of the admission made by the tenant viz. that he has stopped using the premises
for the manufacture sods but using the premises for storing soda manufactured at Ramanathapuram is sufficient to establish the case of the landlord
that the building is put to a purpose other than for which it was leased out. It is urged that using the premises for the purpose of storing soda
manufactured else where viz. as a godown, cannot be said to be the same purpose as a soda factory for which the premises was leased out
originally.
At this juncture. I may refer to the admission of the tenant in the witness box that in the rent deed executed by him it is not mentioned that the
lease is for the purpose of a godown. It is also his positive admission that the lease is only for conducting a soda factory. The argument of the
learned Course for the civil revision Petitioner is that when lease is for the purpose of conducting a soda factory, the tenant using the premises for
storing soda manufactured elsewhere will constitute an user for a purpose other than for which the premises was leased. Inasmuch as the storing is
done without the written consent of the landlord, the landlord is entitled to eviction u/s 10(2)(ii)(b) of the Tamil Nadu Buildings (Lease and Rent
Control) Act. The argument of the learned Counsel for the civil revision Petitioner is that though the manufacture of soda and storing the same in
the premises relate to the same business, yet, the actual user will have to be taken into consideration in arriving at the purpose for which the
premises is put to use. It is also his argument that if it is used as a soda factory people will be frequenting the premises very often and Public Health
authorities also will be inspecting the premises on and often and manufacture of soda necessarily entails the premises being kept clean and hygenic
But, if the premises is to be used as a place of storing the soda, manufactured elsewhere, all these things are not there and there is every possibility
of the building deteriorating day by day. It is on this basis it is contended that manufacturing soda and storing soda cannot be said to be the same
user. In support of the contention of the civil revision Petitioner a decision of this Court reported in The Union of India (UOI) Vs. V.M.P. Swami,
is relied on. In that case, a building was taken on lease for running the office and the tenant used the premises for installing heavy repeater machines
with its accessories and cables, and a single Judge of this Court held that such a function will constitute a different user within the meaning of
Section 7(2)(ii)(b) of the Act XXV of 1949. But, the facts in the above case cannot be said to be similar to the facts of the present case. In the
above case, the premises was leased out for an office and the tenant installed repeater machines. There is no connection between running of an
office and using the premises for installing repeater machines. But, in the present case, the manufacture of soda and storing of soda relate to the
same business. Hence the above said decision on facts, cannot be said to apply to the facts of the present case.
The next case cited on behalf of the civil revision Petitioner is the case reported in K.V. Radhakrishna Chettiar v. E.K.M. Mohammed Abdul
Ghani and Ors. (1973) T.L.N.J. 70 where a premises let out for running a photo studio was made use of for conducting a business in sports
goods. A single Judge of this Court came to the conclusion that the tenant used the premises for the purpose other than for which it was leased out.
The facts in this case also are not similar to the facts of the present case.
The learned Advocate for the civil revision Petitioner draws my attention to a Bench decision of the High Court of Punjab and Haryana in
Chhaju Ram v. Thulsi Dass ILR (1977) P. & H. 177 where Division Bench of the Haryana High Court had occasion to deal with a similar
question. In the case before the Division Bench of the Haryana High Court, the landlord sought the eviction of the tenant on the ground that the
premises which was leased out for the purpose of a shop and was used for the purpose of storing cloth as a godown. The Division Bench of the
Haryana High Court, after going into the various meanings of the words shop and godown as mentioned in several dictionaries and Law Lexicons,
came to the conclusion that storing cloth in a godown cannot fall within the ordinary dictionary meaning of the word shop and the purpose of
storing goods at a premises is different from the sale of those goods. The Division Bench also observed that even in common parlance of the
ordinary people of the trading community shop means a shop and godown maans a godown and the words cannot be intermixed and alternatively
used. When independently used these purposes do not overlap with each other. Eventually the Division Bench came to the conclusion that using
the premises as godown for storing cloth will tantamount to using the building for the purpose other than that of a shop for which it was leased out
and came to the conclusion that the landlord is entitled to an order of eviction This view of the Division Bench is subsequently confirmed by a Full
Bench of the same Court in the case reported in Des Raj v. Sham Lal I.LR. (1980) P. & H. 278. In the Full Bench case, the landlord leased out
the premises to the tenant for the purpose of a shop and that was used by the tenant for the purpose of a godown. The landlord complained that
user of the premises let out for the purpose of a godown will tantamount to change of user. In arriving at this conclusion, the Full Bench after
considering in detail the meanings of the words godown and shop and after quoting all dictionaries and law lexicons came to the conclusion that in
using the premises for godown the tenant had used the building for purposes other than for which it was based viz., for the purpose of a shop on
the following reasoning.
The hypothetical discussion is meant to emphasis that where a demised ''building'' is identified merely as ''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. A
''godown'' remains mostly closed, while a shop remains mostly open. The premises used as a godown are bound to deteriorate and a landlord, if
had been informed at the time of entering into the lease transaction that the lessee intended to use the demised premises described as ''shop''s he
might not have agreed to enter into the said lease transaction. Hence, when the demised premises are used for a purpose to which having regard to
its description as ''shop'', house, etc., the landlord may not have intended, had the said different purpose, which the lessee had in mind, been made
known by the lessee to him, then the landlord may not have agreed to lease the said building for that purpose see in this connection Telu Ram v.
Om Parkash Garg (1971) P.L.R. 1. Hence putting to use the demised premises to a purpose, which the given description or identification of the
demised building in the rent note did not warrant, would tantamount to the change of user.
Accordingly, if the expression ''shop'' and ''godown'', indicate two diametrically opposite purposes to which the respective premises so described
can normally he put. then when in a given lease-deed a building is identified as ''shop'' without any more, such promises cannot be used as
''godown.''
The learned Advocate for the civil revision Petitioner also draw my attention to a distinction made between a lease for ordinary purpose and a
lease for manufacturing purpose in the sense that a lease for ordinary purpose will be deemed to be a lease for month to month terminable on
fifteen days'' notice ending with the tenancy month and a lease for manufacturing purpose will be deemed to be a lease for year to year terminable
by six months'' notice ending with the year of tenancy. In view of the fact, that both the kinds of leases are treated separately under the provisions
of the Transfer of Property Act, the learned Counsel for the civil revision Petitioner contends that a manufacturing purpose, viz., the purpose of
manufacturing soda and storing cannot be said to be the same purposes. It is also to be noted that the Respondent contended before the lower
Court in his counter-statement that the lease being one for manufacturing purpose six months'', notice ought to have been given under the
provisions of the Transfer of Property Act. This is referred to in support of argument of the Advocate for the civil revision Petitioner that the
purpose of manufacturing soda is considered to be a different, purpose other than storing soda, even according to the tenant.
I do not have the advantage of the Advocate for the Respondent placing his points before me. Hence, I have no other alternative except to
follow the Full Bench decision of the Haryana High Court, and adopting the same reasoning, coma to the conclusion that using the petition
mentioned premises for the purpose of storing soda manufactured elsewhere as a godown will amount to using the premises for the purpose other
than for which it was leased viz., for the purpose of soda factory. In this view, the orders of the appellate authority cannot be supported and hence
the civil revision petition is allowed and the eviction of the Respondent is ordered. There will be no order as to costs. Three months'' time is
granted for the Respondent to deliver possession of the premises.