UJAGAR SINGH,J - (1.) DEWAN Singh respondent filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949, for eviction of Sewa Ram petitioner in this revision from the shop marked ABCD in the site plan. The averments in the petition are (i) that present petitioner was occupying the shop as tenant at a monthly rent of Rs. 34/- vide rent note dated 17.3.1969 ; (ii) that the present petitioner was in arrears of rent with effect from 16.8.1980; (iii) that the shop was rented out to the respondent for carrying on the business of Karyana but he has started out to the business of selling and repairs of cycles for the last more than four months and thus used the shop for a purpose other than for which it was given on rent. The petitioner here thus changed the user of shop and his act amounted to misuser of premises; (iv) that the petitioner here had committed such acts likely to impair materially the value and utility of the shop and the carrying on the work of cycle punctures is a nuisance to the neighbours of the buildings in the neighbourhood.
(2.) IN written reply the tenancy was admitted alongwith the interests and costs as assessed by the Rent Controller. The change of user of the shop as mentioned in the rent note was denied. Starting of business of selling cycles or repairs of cycles was denied and it was asserted that Karyana business was still being carried on. Other averments in the petition were denied. Out of the pleadings of the parties the Rent Controller framed two issues on merits and the third one for relief. The Rent Controller gave a finding that there is change of user of the shop and decided issue No. 1 in favour of the present respondent. Issue No. 2 was decided against the present respondent holding that the present respondent has not been supported by his witnesses and the statement of the present respondent was not sufficient to give a finding in his favour on this issue. Under Issue No. 3 the petition of respondent was accepted and order of ejectment was passed. The Appellate Authority affirmed the finding of the trial Court on Issue No. 1. So far as the finding on issue No. 2 given by the trial Court is concerned, it was not challenged by the present respondent. The order of eviction, therefore, stood affirmed. The petitioner has challenged the order of eviction.
(3.) THE learned counsel for the petitioner has argued that if a premises is given on rent for a particular business and the tenant starts a different business in the premises, it does not become a change of user. He is supported by a judgment of the apex Court in Rattan Lal v. Asha Rani, 1988(2) RCR 549 : 1988 HRR 625. It was held therein that the initial purpose was to run a grocery shop and the tenant instead of using it for a grocery shop was running a book shop therein and this ground was not held to be a valid ground for ordering eviction. The learned counsel for the petitioner has also referred to another judgment of the apex Court in Mohan Lal v. Jai Bhagwan, AIR 1988 Supreme Court 1034 (1988(1) RCR 444 (SC). Therein the provision of Section 13(2) of the Haryana Urban (Control of Rent and Eviction) Act, 1973, was involved. In Section 13(2) clause (ii)(b) provides as follows :- "(ii) that the tenant has after commencement of 1949 Act, without the written consent of landlord (a) xx xx xx xx (b) used the building or rented land for a purpose other than that for which it was leased." In that case it was held as under :- "In the expanding concept of business now-a-days and the growing concept of departmental stores, we are of the opinion that it cannot be said that there was any change of user in the facts of this case which would attract the mischief of the provisions of Section (2)(ii)(b) of the Act. The building was rented for purpose of carrying on a business, using it for another business it will not in any way impair or damage the building and this business can be conveniently carried on in the said premises. There was no nuisance." In this case also so far as issue No. 2 with regard to impairment because of change of user in concurrent finding of the Rent Controller in favour of the present petitioner has not been challenged before the appellate authority and, therefore, there is no question of impairment or nuisance to be a ground. ;