M/s. Atul Castings Ltd. v. Bawa Gurvachan Singh, (SC) BS8618
SUPREME COURT OF INDIA

Before:- D.P. Mohapatra and Shivaraj V. Patil, JJ.

Civil Appeal No. 2900 of 2001 (Arising out of Special Leave Petition No. 64 of 2001). D/d. 20.4.2001

M/s. Atul Castings Ltd. - Appellant

Versus

Bawa Gurvachan Singh - Respondent

For the Appellant :- Mr. A.M. Singhvi, Sr. Advocate with Mr. R.K. Talwar and Mr. S.L. Aneja, Advocates.

For the Respondent :- Mr. Gopal Subramanium, Sr. Advocate with Mr. Manoj Swarup, Mr. Hiren Dasan and Mr. Avinash Gautam, Advocates.

East Punjab Urban Rent Restriction Act, 1949, Section 13(2)(ii)(b) - Change of user - Building let for residential purpose alone - No specific clause in agreement that tenant shall not use even one room as office room or study room - Tenant using one room as office room and study room - Not a change of user. 1993(1) RCR (Rent) 259 (SC) distinguished.

[Paras 14, 16 and 24]

Cases Referred :-

Gurdial Batra v. Raj Kumar Jain, 1989(2) RCR (Rent) 233(SC)

U.Po. Naing v. Burma Oil Co., AIR 1929 Privy Council 108.

Dupport Steels Ltd. v. Sirs, 1080(1) All England Reporter 529.

Bishamber Dass Kohli (dead) by LRs. v. Satya Bhalla (Smt.), 1993(1) RCR (Rent) 259 (SC) : 1993(1) SCC 566.

M. Arul Jothi v. Lajja Bal (deceased), 2000(3) SCC 723 : 2000(1) RCR (Rent) 278 (SC).

JUDGMENT

Shivaraj V. Patil, J. - Leave granted.

2. The issue that has come up for consideration and decision in this appeal is "whether use of one room to attend some office files at home in a building leased for residential purpose, renders a tenant liable for his eviction for the building under Section 13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act, 1949."

3. This appeal is filed by the tenant who has suffered an order of eviction under Section 13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act, 1949 (for short 'Act'). The respondent herein, the landlord, filed a petition for eviction of the appellant from the premises on the ground of non-payment of arrears of rent and using the premises for the purpose other than residence stating that the change of user had been effected without written consent of the landlord. However, during the pendency of the proceedings, the landlord did not press the eviction petition on the ground of non-payment of arrears of rent. The Rent Controller ordered eviction of the appellant from the premises accepting that he was using a part of the premises as office contrary to the purpose stated in the lease-agreement. The appellant filed the appeal before the appellate authority challenging the order of the Rent Controller. The appellate authority dismissed the appeal agreeing with the Rent Controller. The appellate approached the High Court by filing a revision petition questioning the validity and correctness of the order of the appellate authority confirming the order of eviction passed by the Rent Controller. The High Court by impugned judgment and order upheld the order of eviction by dismissing the revision. Hence the appellant has filed this appeal.

4. Dr. A.M. Singhvi, learned Senior Counsel appearing for the appellant, urged that the order of eviction passed against the appellant is patently unsustainable both on facts as well as in law; merely because in a six bed room house, in one of the rooms, certain office files brought home were disposed of; a table and a chair was put in the room for that purpose where even the children and members of the family used that room for study, did not change the classification or character of the premises from residential to non-residential; the interpretation placed on Section 13(2)(ii)(b) of the Act by the authorities and the High Court was too narrow and restricted, running contrary to the very object and purpose of the provision.

5. Shri Gopal Subramanium, learned Senior Counsel appearing for the respondent, made submissions supporting the order of eviction passed against the appellant. He contended that the concurrent findings of facts recorded by all the courts below do not call for any interference at the hands of this Court in exercise of jurisdiction under Article 136 of the Constitution. He emphasised on the terms of the agreement in particular inviting our attention to the words that the premises was to be used for the purpose of residence only; since one room was used as office, Section 13(2)(ii)(b) was attracted for eviction of the appellant.

6. We have considered these submissions of the learned counsel for the parties. It will be useful to notice a few provisions of the Act which will have bearing in deciding the issue that the has arisen for our consideration.

7. Since finding is recorded as to the change of user of the building on the so-called admission of the appellant in the written statements, it is necessary to notice the relevant pleadings. Para 6 of the original eviction petition reads :-

8. The reply to the said paragraph in the written statement is that :

9. Para 6 of the plaint was amended and after the amendment it reads :-

10. Amended written statement in relation to the same is to the following effect :-

11. The respondent in para 6 of the plaint, both original as well as amended, did not give particulars as to the change of use of the premises including from what period there was change in the use of the premises. As is evident from para 6 of the written statement both before and after the amendment the appellant specifically denied that he had started using the premises for the purposes other than the residence. It is explained that the Managing Director of the company was living in the demised premises with his family members; in one room an office table and office equipments were kept for disposal of office work at home; the same room was being used as study room of his family members and that the premises has been continuously used for the purpose of residence only and for no other purpose. We fail to understand as to how it can be said or understood that the appellant had admitted the case of the respondent in regard to the change of user of the building for the purpose other than that was leased. To get an order of eviction under Section 13(2)(ii)(b) of the Act a landlord has to plead and establish by proper evidence that the tenant has been using the building for a purpose other than that for which it was leased. It is yet a different issue as to whether use of one room in big building by the appellant for disposal of office files or for study of family members can be said to a change in use of the building for a purpose other than the residential.

12. In support of the eviction petition, the respondent has deposed that he let out the premises on 1.5.1988 through Exit. P/1 and he never allowed the change of user of the premises from residential to non-residential and that the change of user came to his knowledge in the year 1990; he had not mentioned in his petition that any specific portion of the building was being used as office; he did not see any person working in the office but while he was standing outside the building, he saw some visitors; he admitted that the appellant used to have a regular office is SCO No. 42, Sector 7-C, Chandigarh. The said office was closed somewhere in the year 1996. It may be noticed that the building was taken on lease by the appellant-company for the residence of it Managing Director; the address of the office of the appellant-company was given as SCO No. 42, Second Floor, Sector 7-C, Madhya Marg, Chandigarh in the eviction petition itself filed before the Rent Controller. It appears the appellant was served with the notice of the proceedings on the same address. The statement of the respondent that the appellant was using one room in the building as office since 1980 and that the office at SCO No. 42, in Sector 7- C, Chandigarh was closed in 1996 clearly indicates that the office of the appellant company was not in the building in question when the petition for eviction was filed. In para 27 of its judgment, the appellate authority has referred to the statement of R.K. Aggarwal (RW-1) (the Managing Director of the appellant-company). In his deposition, he has stated that he is residing in the house in question alongwith his wife, mother, two sons and their wives and children and the house is being used purely for residential purposes from the time it had been taken on rent; that he was keeping some important files relating to affairs of the company where he does some work relating to the files after office hours; no board or nameplate or hoarding of the company is displayed in the house in question; the office of the company was in House No. 2163, Sector 21-C, Chandigarh from where it was shifted to SCO No. 84-85 Sector 17-C, Chandigarh. Thereafter, it was again shifted to SCO No. 42, Sector 7C, Madhya Marg, Chandigarh and at present, the office is located in the factory premises of the company, Nalagarh. The Rent Controller as well as the appellate authority expected the appellant to lead negative evidence to prove that part of the building was not being used as office. This approach is opposed to settled principle of law in regard to discharge of burden of proof. The authorities have proceeded to accept the case of the respondent mainly on the basis of so-called admission said to have been made by the appellant in the written statement. A reading of statement made in the written statement in the context has to be integrated and not truncated. If para 6 of the written statement is read as a whole instead of picking up one sentence or part of it, there would be no scope to say that the appellant admitted the case of the respondent as to change of user of the building. There is no other evidence to support that there has been a change of user of the building. In our view, the Rent Controller as well as the appellate authority committed a manifest error in proceeding to order eviction of the appellant in the absence of evidence supporting the ground of change of user of the building. The findings in the absence of necessary pleading and supporting evidence cannot be sustained in law. It is not a case of concurrent findings based on the evidence; it is a case of concurrent error. Unfortunately, the High Court has failed to see this basic shortcoming in the case of the respondents. Hence, we have no hesitation in holding that the change of user of the building as a fact was not established to apply Section 13(2)(ii)(b) of the Act.

13. Now we will focus our attention to the issue as to whether use of one room to do some home work relating to office and use of the same room as study room by the members of the family in the absence of Managing Director of the appellant amounts to change in user of building having regard to the facts of the case on hand. The map at Annexure R/3 shows that the building is a big one with bed rooms, dining, drawing etc., unmistakably showing that it is a residential building. One small room is shown as office. Introductory para 2 of the agreement to let (Exbt. P/3) dated 1.1.1992 shows that the respondent agreed to let out the premises to the appellant for a period of 11 months from 1.1.1992 for the residence only on the terms and conditions mentioned below under the said paragraph. There are as many as 16 terms and conditions. Out of them, conditions 7 & 8 read thus :-

14. There is no specific clause in the agreement that the appellant shall not use even one room as study room for the members of the family or he shall not use one room to do any office work at home. The respondent having chosen to incorporate conditions 6 & 7 in the agreement (Exh.P-3) relating to sub-letting and addition or alteration in the premises has not chosen to add a specific clause prohibiting use of any portion of the building in a particular manner although it is stated in the introductory para of Exh.P-3, that the premises is leased for the residence only. There is no evidence to show that in one room the office of the appellant-company was functioning or that any transactions used to take place in that room relating to the appellant-company or any regular business of the company was carried out or that officials or other members of the public used to visit the building as the office of the company. It is not uncommon that the officials, executives, officers, businessmen, industrialists and people engaged in the other vocations may have some home work to do. In these days computers, internet and other like facilities are kept at home for convenience and use. In residential buildings where persons live with family members, a room may be used for the purpose of doing home work relating to office files or study of children or allied or ancillary use in a building leased for residential purposes. So long as in a residential building, there is no regular commercial activity or carrying on of business and regular office with interaction of the public and customers, etc. it is not possible to say that use of one room for doing home work or study itself will change the user of the building and that the classification and character of the building is changed. But it continues to remain a residential building so also its purpose remains as residential. Use of a room in a residential building for personal purpose should be distinguished from use of such a room for business, industry or other commercial activity or as a regular public or professional office. We must add that each has to be considered on its own facts on the basis of the pleadings and evidence to find out as to whether there has been a change of user in the building from residential to non-residential as it is not possible to give exhaustive list of situations as to change of user of buildings.

15. Section 13(2)(iii) and (iv) take care of situation where tenant has committed such acts as are likely to impair materially the value or utility of the building or the rented land or where the tenant has been guilty of such acts as are a nuisance to the occupiers of buildings in the neighbourhood.

16. The interpretation of provision must be purposive and not unduly restrictive or narrow. If we interpret Section 13(2)(ii)(b) in a restricted and narrow manner, it will be difficult for any tenant occupying a residential building to protect himself from arbitrary eviction and even to have freedom to use the building even for residential purpose as he wants. Such interpretation will defeat the intent and purpose of the Statute.

17. This Court in Gurdial Batra v. Raj Kumar Jain, 1989(2) RCR (Rent) 233 : 1989(3) SCC 441 had an occasion to consider the very question of the change of user within the meaning of Section 13(2)(ii)(b) of the Act. That was a case in which the appellant had taken the premises on rent from the respondent for running a repair shop of cycles and rickshaws. He carried on side by side selling televisions in the premises for about seven months but had to stop the same as it was not viable. The Rent Controller rejected the eviction petition. The appellate authority at the instance of the landlord granted eviction. The High Court declined to interfere when moved by the tenant. Dealing with the question whether there has been a violation of the terms of tenancy by using the premises for a purpose other than that for which it had been leased, this Court in para 6 & 7 stated thus :-

18. In para 5 of the same judgment, referring to observations of Lord Diplock, J. in Dupport Steels Ltd. v. Sirs, 1080(1) All England Reporter 529, it is stated thus :-

19. This judgment supports the case of the appellant.

20. In Bishamber Dass Kohli (dead) by LRs. v. Satya Bhalla (Smt.), 1993(1) RCR (Rent) 259 (SC) : 1993(1) SCC 566, this Court held that change in use of a part of the premises as lawyer's office without seeking permission of the landlord amounted to change in user from residential to scheduled building and it constituted a valid ground of eviction under Section 13(2)(ii)(b) of the Act; change in user may be even in respect of a small portion and need not be in respect of the entire building or a substantial part thereof. Facts of the case were that the suit premises was let out to the respondent solely for residential purpose; the respondent's husband, a lawyer, established his office in a part of the suit premises and started using the same for that purpose. The Rent Controller ordered eviction under Section 13(2)(ii)(b) of Act. The appellate authority affirmed it. The learned Single Judge of the High Court in revision set aside the order of eviction holding that the building let out as a residential building had become a 'scheduled building' by use of a part thereof as lawyer's office by the tenant's husband. This Court stated that Section 4 of the Act deals with the fixation of fair rent and for that purpose 'scheduled building' is treated differently from a residential building and that the same is the position with regard to the ground of eviction contained in Section 13(2)(ii)(b) wherein change in user of the building is alone significant for constituting the ground. The object is that the parties must remain bound by the terms of the lease. Para 8 of the said judgment is to the following effect :-

21. According to us, this judgment is on the facts either admitted or established in that case. The building was let out solely for residential purpose; husband of the tenant established his office as lawyer's office in a part of the suit premises, hence it became a 'scheduled building' within the meaning of Section 2(h). In terms of para 8 of the judgment extracted above, a building let out for residential purpose alone, changes its character and becomes a scheduled building as defined under Section 2(h) of the Act, without the written consent of the landlord, the ground of eviction under Section 13(2)(ii)(b) is made out. Section 2(d), 2(g) and 2(h) define 'non-residential building', 'residential building' and 'scheduled building', respectively and they are three different categories. Scheduled building is one which is being used by a person engaged in one or more of the professions specified in schedule I of the Act partly for his business and partly for his residence. In the case on hand, the facts are entirely different. The appellant even if it is taken as using one room as office for his personal purpose to do homework, it does not convert the building into a scheduled building in as much he did not use the building partly for his business and partly for his residence. Hence the decision aforementioned has no application to the facts in the present case.

22. The case of M. Arul Jothi and another v. Lajja Bal (deceased) and another, 2000(1) RCR (Rent) 278 (SC) : 2000(3) SCC 723 also does not support the case of the respondent as it is on the facts of that case dealing with a specific clause contained in the lease deed. In that case, eviction petition was filed under Section 10(2)(ii)(b) of T.N. Buildings (Lease and Rent Control) Act, 1960 on the ground that the appellant was using building for a purpose other than that for which it was leased. There was specific prohibition clause in the rent deed which stated that "the premises shall be used by the tenant only for carrying on his own business.......and the tenant shall not carry on any other business than the above-said business." Looking to the use of the word only coupled with the other sentences that the tenant shall not carry on any other business than the one specified, in para 10 of this judgment the Court has observed thus :-

23. The learned Senior Counsel for the respondent emphasising as to the use of the words for residence only in the lease agreement submitted that the aforementioned case fully supports the respondent. We do not think so, for the reasons more than one. That was a case where the shop, a non-residential building, was let out on condition to carry on only a specified business and no other business; although in the lease deed in the case on hand it is stated that the premises was taken for residence only; there is no other clause specifically prohibiting the use of a room in the building even for either study or to carry on some home work of the office. On facts also, as already noticed above, change of user of the premises has been neither properly pleaded nor established. Paragraph 10 extracted above, was more on the point dealing with a specific prohibitory clause in the lease deed. The Court looking to the word only coupled with other specific prohibitive clause took that the view.

24. In this case, with which we are concerned, there is no specific clause in the lease agreement prohibiting use of even a room in the building for disposal of some files at home pertaining to his office and for the study of family members. The fact is that the appellant is living with the members of his family; the building did not cease to be a residential building and the purpose and character of the use of the building also did not change. As a matter of fact also, the respondent, as already noticed above, has failed to establish the change of user of the building by necessary pleading and evidence.

25. Under these circumstances, the issue is answered in the negative. In the result for the reasons stated hereinabove, the impugned judgment and order of the High Court are set aside. The appeal is allowed and the petition filed for eviction by the respondent is dismissed with no order as to costs.

Appeal allowed.