MOTI RAM SINGLA Vs. OM PARKASH TAILOR MASTER

JUDGEMENT

(1.) This is landlord's petition in whose favour the eviction order was passed by the Rent Controller but was set aside in appeal. The premises in dispute consists of a room only which was given in a monthly rent of Rs. 25. The landlord sought the ejectment of his tenant, inter alia, on the ground that he has retired from service and wanted to settle at Jind, and, therefore, required the premises for his bonafide use and occupation. It was next pleaded that the premises remained closed from July, 1980 to April, 1981 without any sufficient cause and, thirdly the same were being used for the purposes of store whereas the same were let out for residence and thus, there was change of user. The learned Rent Controller negatived the plea of the landlord as regards the bonafide requirement as the necessary ingredients were not pleaded. However, the Rent Controller found that the premises in dispute had remained closed for a continuous period of more than four months without any reasonable cause. It was further found that the tenant was also liable to ejectment on account of change of user. According to the finding of the Rent Controller the premises were let out by the landlord for residence but the tenant had started using the same for commercial purpose without any permission of the landlord. In view of these findings, the eviction order was passed. In appeal, the learned Appellate Authority reversed the findings of the Rent Controller and came to the conclusion that the findings of the Rent Controller were beyond that pleadings as regards the change of user. As regard the ground that the premises had remained closed for a continuous period of four months, the learned Appellate Authority found that there no cogent evidence to that effect. Consequently, the eviction order was set aside. Dissatisfied with the same the landlord has filed this petition.

(2.) On the last date of hearing, the case was adjourned to find out the possibility of a compromise, if any. However, the learned counsel for the tenant respondent showed his inability in this regard.

(3.) The learned counsel for the petitioner has contended that the change of user is fully proved on the record by admission of the tenant himself. According to the learned counsel, in the ejectment application it was pleaded that the room in dispute was given on rent for residence and the same was now being used as a store. In the Written Statement, the tenant pleaded that he never used the room as store and the same is being used for residential purpose. The tenant while appearing as RW 1 stated that he took the room in dispute as a shop and for residence. When it was put to him that in the Written Statement he had pleaded that he had taken the premises in dispute for residence he stated that he had never so stated in the Written Statement. Thus, from the pleadings of the parties and the statement of the tenant it is amply proved that the room in dispute was given for residence whereas at present the tenant is using the same as a shop. Thus, from the admission of the tenant himself, the change of user is clearly proved on record. On the basis of this evidence, the learned Rent Controller rightly came to the conclusion that the tenant was liable for ejectment on this account as contemplated by Section 13(2)(ii)(b) of the Act. The approach of the Appellate Authority in this behalf is wholly wrong and misconceived. According to the Appellate Authority, this finding of the Rent Controller was contrary to pleading and, therefore, the same could not be relied. According to the Appellate Authority, the plea of the tenant is that he is doing business in the premises from the very beginning as is evident from his statement before the premises from the very beginning as is evident from his statement before the issues and, therefore, the said statement will be believed that he is doing tailoring work in the premises where he cooks his meals also. The learned Appellate Authority has not considered the admission made by the tenant in this Written Statement where he categorically pleaded that the premises in dispute was given on rent for residence. Thus, the finding arrived at being against the pleadings was vitiated. Under the circumstances, the tenant is liable for ejectment on the ground of change of user. In view of this finding the other ground need not the gone into. Consequently, the petition succeeds, the order of the Appellate Authority is set aside and that of the Rent Controller ordering ejectment of the tenant is restored. No order as to costs. However, the tenant is allowed three months' time to vacate the premises provided all arrears of rent if any and advance rent for three months are deposited with the Rent Controller within a period of one month and further if the tenant files a written undertaking that he shall vacate the premises and hand over the vacant possession after the expiry of that period.