- (1.) The tenant-petitioner has filed this revision petition against the order of the Appellant Authority, Chandigarh dated 11th December, 1975, whereby the order of the Rent Controller, dismissing the application for ejectment, was set aside and order of ejectment was passed against him.
(2.) The landlords, who are husband and wife, filed the application for ejectment on various grounds, but in this petition, we are only concerned with the ground that the tenant used the building for a purpose other than for which it was leased as contemplated under Section 13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act). The rented premises consists of Shop-cum-Flat No. 37, Sector 19-D, Chandigarh. In the application for ejectment, the landlords pleaded that the tenant is liable to ejectment on various grounds, including that "The respondent has started dry cleaning business with effect from 16.8.1973 and this is in violation of the terms and conditions of tenancy. The building is damaged by this Act". In reply to this para, the tenant-petitioner stated, that "Para 5 (f) is admitted to the extent that the respondent is doing dry cleaning business. The rest of the Para is incorrect". On the pleadings is the parties, the Rent Controller framed the following issues : - 1. Whether the tender of arrears of rent is invalid 2. Whether the respondent has caused damage to the premises in question and has as much, impaired the value and utility of the building 3. Whether the respondent has sub-let the part of the premises 4. Whether the premises in question are required by the petitioner for her personal use and occupation 5. Whether the respondent has been using the premises for the purpose other than for which those were let out Issue No. 5 is a specific one and both the parties knew that the ejectment was being sought on the ground that the premises have been used for the purpose other than that for which the same were let out. The learned Rent Controller, while discussing issue No. 5, held that "In the absence of a specific plea the evidence led by the petitioners in that connection cannot be looked into. Otherwise also a dry cleaning shop must be held to be a general trade, and the conversion of the shop from general store shop to a dry cleaning shop does not amount to the change of the purpose which essentially remains a commercial shop." In appeal filed on behalf of the landlord, the Appellant Authority has reversed this finding and came to the conclusion that so far as the factum of change of user from a general store to dry cleaning is concerned, it has been wholly proved. Reference has also been made to an invitation card on record, which shows that the "Badshah General Store" had invited certain guests on 16th August, 1973, for witnessing the opening ceremony of new shop of "Badshah Dry Cleaners" at S. C. F. No. 37, Sector 19-D, Chandigarh. Moreover, it is admitted by the tenant himself that he was at present carrying on the work of dry cleaning. On this finding, the learned Appellant Authority set aside the order of the Rent Controller and passed an order of ejectment against the tenant on the basis that he has used the premises for the purpose than that for which they were leased. Feeling aggrieved against this order, the tenant has come up in revision to this Court.
(3.) Mr. H.L. Sarin, Senior Advocate, learned counsel for the tenant, vehemently argued that the landlord has failed to take any specific plea in his ejectment application in this respect and in the absence of my plea, no amount of evidence can be looked into. From the pleadings, he pointed out that what the landlord has pleaded, is only that by starting dry cleaning business the building has been damaged by this act. According to him, it was never set up a ground for ejectment of the tenant. After going through the pleadings of the parties, I am of the opinion that this contention has no force. Moreover, there is a specific issue in this respect and the parties have led evidence on that issue. It is well settled that where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in reputation of those of the other side, it cannot be said that the absence of an issue was fatal of the case or that there was mis-trial which vitiates proceedings. Reference in this respect can be made to Nedunuri Kameswaramma v. Sampati Subba Rao, 1963 AIR(SC) 884.;