J.V.GUPTA, J. - (1.) THIS is tenant's petition against whom eviction order has been passed by both the authorities below. The landlord Hari Chand sought the ejectment of his tenant Jodha Ram from the house is dispute, marked red in the site plan Ex. A2, consisting of three rooms, kitchen, bath, latrine, courtyard and a verandah, which was let out to him on a monthly rent of Rs. 40/- vide rent note, dated 6th September, 1964 (Ex. A1). The ejectment was sought, inter alia, on the ground that the premises were let out for residential purposes whereas the tenant has changed the user as the premises were now being used for commercial purposes. The other grounds need not be mentioned because they were negatived by both the authorities below. With respect to the change of user, the landlord made the following allegations in the ejectment application contained in paras 9, 10 and 11 thereof :- "9. That taking undue advantage of his long and continuous absence of the petitioner from Jagadhri and a flagrant breach of the aforesaid rent agreement dated 6.9.1964 aforesaid a couple of years back without any knowledge and written consent of the petitioner, the respondent started misusing the demised premises for commercial purpose dealing in the manufacture and sale of polythene bags under the name of Jagadhri Metal Trading Company. 10. That again some time between January and March, 1980 and again without the knowledge and written consent of the petitioner, the respondent expanded his commercial activities and started manufacturing stickers, and shifting his family elsewhere in Jagadhri for their residence, illegally mala fide, mischievously and in flagrant breach of the rent agreement converted the demises premises wholly to commercial use under the name of Jagadhri Metal Trading Company, a purpose other than the one for which the premises were leased. 11. That in the process of this aforesaid illegal, mala fide and mischievous misuse of the demised premises the respondent allowed his workers in the sticker business to take up their residence in the demised room on the first floor of the house with the consequent nuisance involved for the neighbours thus impairing the values and utility of the premises and the consequent loss to the petitioner. The tenant filed his Written Statement in reply to the said paras as under :- "9. That para 9 of the application is wrong, hence denied. It is incorrect to suggest that the respondent had used the premises for commercial purpose or for the purpose other than that for which the same were let out to the respondent. The business of the respondent of polythene bags is only a business of supply. The respondent simply obtains orders from various customers at Jagadhari and he supplies material after obtaining the same from other sources. 10. That para 10 of the application is absolutely wrong and hence denied. It is incorrect to suggest that the respondent has shifted his family to somewhere else or that he has started his business of plastic stickers etc. in the premises in dispute. It is also incorrect to suggest that the respondent has converted the premises in dispute to commercial purposes as alleged in this para. 11. Tha para 11 is wrong. It is incorrect to suggest that the respondent ever allowed any of his employees to stay in any room of the premises in dispute or the respondent has impaired the value and utility of the premises in dispute." At the trial, on this ground, the learned Rent Controller found that the landlord had been able to prove that the tenant was doing the business of sale of polythene bags and stickers, etc., in the premises in dispute. Consequently it was held that the tenant had used the premises for a purpose other than that for which it was let out to him which amounted to change of user as it was without the consent of the landlord. Consequently, eviction order was passed. In appeal, the learned Appellate Authority affirmed to the said finding of the Rent Controller with the observations :- "From the evidence on record, certain circumstances have come to exist which are not even refuted by the tenant. He is running a concern called Jagadhri Metal Trading Company and obtained sales-tax number way back in 1957. He obtained a telephone connection. It was installed in this house in 1978 and it was got shifted to the business premises at Shastri Market somewhere in 1980. Before that, the tenant did not have any separate premises to carry on his trade under the name and style of Jagadhri Metal Trading Company. In his statement (copy Ex. AX) made before Sub-Judge, Jagadhri, he admitted that he used to receive orders in the house in question." Thus, the eviction order was maintained. Dissatisfied with the same, the tenant has filed this petition in this court.
(2.) LEARNED counsel for the petitioner submitted that from the evidence on record it could not be held that there was any change of user. The premises were let out for residential purposes and the tenant was still living therein with his family, and that the stand taken by the landlord in the ejectment application that the tenant had shifted his residence has not been found in his favour by the authorities below. Thus, argued the learned counsel, since the tenant was still residing in the premises in dispute it could not be said that there was change of user. Moreover, the business carried on by the tenant in the name of Jagadhri Metal Trading Company was not of such a nature which required any customers to be coming and going to the premises in dispute nor any goods, etc., are stored on account of that business in premises. It is only a trading business in the sense that the tenant gets orders for supply and the said supply is directly made as per orders after getting the same from the market. It was further argued that the evidence produced by the tenant had not at all been considered by the Appellate Authority, and, thus, the findings, arrived at are vitiated. In any case, it was illegal and improper and could be interfered with u/s 15 of the Haryana Urban (Control of Rent and Eviction) Act, 1973, it was argued. On the other hand, the respondent-landlord himself being an Advocate, appeared in person and argued that on appreciation of the entire evidence it had been concurrently found that the tenant had changed the user of the premises from residential to a commercial one, and that being a finding of fact could not be interfered with in the exercise of revisional jurisdiction of this Court. In support of this contention he referred to the latest Supreme Court judgment reported as Manick Chandra Nandy v. Debdas Nandy AIR 1986 SC 446. I have heard the learned counsel for the parties and gone through the relevant evidence on record. In the ejectment application, the stand taken by the landlord was that the tenant had shifted his family elsewhere in Jagadhri from the premises in dispute and the same were being used exclusively for commercial purposes. As observed earlier, this stand of the landlord has not been proved by any cogent evidence; rather in his own statement Hari Chand as AW4 admitted that the tenant was still living in the premises in dispute. Moreover, if the tenant has shifted to some other premises, the positive evidence could be let to prove as to where he had shifted. No such question was put to the tenant when put in the witness-box. Under these circumstances, when the tenants is still occupying the premises for residence for the purpose for which it was let out to him, it is to be seen whether there is any change of user or not. It is the case of the tenant himself that he is doing his business in the name of Jagadhri Metal Trading Company, and for that purpose he is operating from the premises in dispute itself. As a matter of fact, it will depend upon the nature of the business the tenant is carrying on which will determine the question of change of user. In the present case, there is no evidence on record that any customers as such have been coming for the said business in the premises in dispute. The only evidence led by the landlord is that the tenant is preparing polythene bags and plastic stickers, and for that purpose he has installed machinery in the premises in dispute. As a matter of fact, no such finding has been given by the Appellate Authority that the tenant has installed any machinery in the house in dispute. According to the Appellate Authority, the tenant obtained a telephone connection which was installed in this house in the year 1978 and later on it was shifted to the business premises at Shastri Market somewhere in 1980. As regards the obtaining of the sales-tax number it was taken somewhere in the year 1957 much before the premises were taken on rent in the year 1964. Thus, there is no finding given by the appellate authority that any machine, etc., was installed by the tenant in the premises in dispute for making polythene bags and plastic stickers. According to the Appellate Authority, the tenant is running a concern called Jagadhri Metal Trading Company. Thus, the main question to be decided is as to what is the nature or type of said business. The tenant in his written statement has taken a definite stand that his business of polythene bags is only a business of supply. He simply obtains orders from various customers at Jagadhri and supplies material after obtaining the same from other sources. That being the nature of the business being carried on by the tenant, it could not be successfully argued on behalf of the landlord that it amounted to change of user of the premises from residence to business. As a matter of fact, the landlord himself in the ejectment application pleaded in para 11 (reproduced earlier) that because of this misuse by the tenant, nuisance was caused to the neighbours, and it had also impaired the value and utility of the building and consequent loss to the landlord. In order to succeed in this regard, it was obligatory on the part of the landlord to prove by leading cogent evidence that the misuse of the premises by the tenant, if any, has caused nuisance to any neighbour or that it had impaired the value and utility of the premises in dispute in any manner. No such evidence was led by the landlord nor is there any such finding by either of the authorities below. Such an evidence could be possible only if, on account of the business carried on by the tenant, any customers were coming to the premises in dispute or any goods were being stored there or any machinery had been installed for preparation of the polythene bags and plastic stickers. In the absence of any such evidence it could not be held that the tenant had changed the user of the residential building to that of commercial or business premises. An invariable characteristic of commercial activity is some kinds of dealing with the public. It may be the buying and selling of goods, the meeting of clients by a lawyer, the treatment of patients by a doctor, and so on. In the case of a residential building, unless there is evidence to indicate that any such activity was carried on in the premises by the tenant it could not be held that he had changed the user of the building from residence to business or trade, specially when he is admittedly residing there along with his family. Thus, the whole approach of the authorities below in this behalf was misconceived. The findings, thus, being illegal and wrong, illegal and improper are liable to be set aside u/s 15 of the Act. The authority cited by the learned count for the respondent was a judgement u/s 115, Code of Civil Procedure, Which is quite different from the provisions of section 15 of the Act. Under the circumstances, the petition succeeds, the eviction order is set aside and the ejectment application is dismissed with no order as to costs.;