Appeal No 5434 of 1985
From the Judgment and Order dated 1181987 of the Punjab and Haryana High Court in Civil Revision No 1048 of 1986 AK Gupta for the Appellants
Vikram Mahajan Gopi Chand and KK Gupta for the Respondent
The Judgment of the Court was delivered by VERMA J
The suit premises in Chandigarh was let out by the appellant to the respondent Smt
Satya Bhalla on 1111974 on a monthly rent of Rs 550 solely for residential purpose
However 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 appellant landlord filed a petition before the Rent Controller in February 1983 seeking eviction of the respondent tenant on several grounds including the ground contained in section 132 ii b of the East Punjab Urban Rent Restriction Act 1949 ie the use of the building for a purpose other than that for which it was leased
The Rent Controller made an order of eviction of the respondent tenant on the ground of change of user contained in section 132ii b
The tenant s appeal was dismissed by the appellate authority which affirmed the order of eviction made by the Rent Controller
A further revision to the High Court has been allowed by the learned single Judge and the order of eviction has been set aside
The High Court has held that the building let out as a residential building became a scheduled building by use of a part thereof as lawyer s office by the tenant s husband and therefore the ground of eviction was not available
The order of eviction made in the landlord s favour was therefore set aside
Hence this appeal by the landlord by special leave
The learned counsel for the appellant contended that the ground of change of user contained in section 132 ii b is clearly made out from the facts and the High Court has erred in setting aside the order of eviction
174 In reply Shri VC Mahajan learned counsel for the respondent tenant advanced several arguments
He submitted that the landlord had waived the ground of change of user by acquiescence to use of a part of the premises as lawyer s office
His next submission is that the ground in section 133 ii b is not available unless the change of user is of substantial if not the entire building and therefore mere use of a small part of the residential building as lawyer s office does not constitute such change learned counsel also submitted that this is not a fit case for interference with the High Court s order under Article 136 of the Constitution
Having heard both sides we are satisfied that this appeal has to be allowed
The High Court s interference in revision with the order of eviction made by the Rent Controller and affirmed by the appellate authority was wholly unjustified
There is no merit in Shri Mahajan s argument of waiver or acquiescence by the landlord
Before the Rent Controller the tenant had pleaded estoppel against the landlord which after due consideration was rightly rejected by the Rent Controller
That finding of the Rent Controller was not assailed by the tenant either before the appellate authority or in the High Court
On merits also this plea is untenable since no such conduct of the landlord is shown
The argument is therefore rejected
We also do not find any substance in the contention that interference under Article 136 is not warranted in case it is found that the High Court set aside the order of eviction on a misconstruction of the law applicable in the present case
The only question therefore is whether on the proved facts no longer in controversy the ground in section 132 ii b is made out
The material provisions in the East Punjab Urban Rent Restrictions Act 1949 with reference to which the contention of Shri Mahajan has to be considered are the following 2
Definitions    a building  means any building or part of a building let for any purpose whether being actually used for that purpose or not including any land godowns outhouses or furniture let therewith but does not include a room in a hotel hostel or 175 boarding house xxx xxx xxx d non residential building means a building being used solely for the purpose of business or trade Provided that residence in a building only for the purpose of guarding it shall not be deemed to convert a non residential  building  to a residential building xxx xxx xxx g residential building means any building which is not a non residential building h scheduled building means a residential building which is being used by a person engaged in one or more of the professions specified in the Schedule to this act partly for his business and partly for his residence xxx xxx xxx 13
Eviction of tenant 1 A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencemen t of this Act or otherwise and whether before or after the termination of the tenancy except in accordance with the provisions of this sec tion
2 A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf
If the Controller after giving the tenant a reasonable opportunity of showing cause against the applicant is satisfied ii that the tenant has after the commencement of this Act without the written consent of the landlord a transferred his right under the lease or sublet the entire building or rented land or any portion thereof or 176 b used the building or rented land for a purpose other than that for which it was leased or the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed three months in the aggregate Shri Mahajan contended that to constitute the ground under section 132 ii b the change in user should be in respect of at least a substantial part of the building if not the entire building
The comparison of sub clause b with sub clause a shows that the omission of the word entire  before the word building  in sub clause b when the word entire  has been used before the word building  in sub clause a is deliberate
For this reason the change in user of the building required to constitute the ground under sub clause b need not be of the entire building the word entire  being deliberately omitted in sub clause b
Faced with this difficulty Shri Mahajan submitted that the change of user should be of a substantial part of the building let out even though not of the entire building
This argument also cannot be accepted in this context
The definitions in section 2 of the Act show that even though a scheduled building  continues to be a residential building as defined in section 2g a residential building of which even a part is used for a scheduled purpose becomes and is called a scheduled building  when user of the building is significant or the criterion
Thus where user of a building is of significance a distinction is made in the Act between residential building which is not a scheduled building and that which is a scheduled building
This is so in section 4 of the Act dealing with determination of fair rent wherein fixation of rent is made on the basis of user and for that purpose a scheduled building  is treated differently from a residential building which is not a scheduled building
Same is the position with regard to the ground of eviction contained in section 132 ii b wherein change in user of the building is alone significant for constituting the ground
177 Accordingly use of the building for a purpose other than that for which it was leased without the written consent of the landlord is a ground of eviction
The object clearly is that the parties must remain bound by the terms on which the building is let out including the condition relating to its use for the purpose for which it was leased
In other words breach of the covenant regarding the kind of user of the building let out is the ground of eviction contained in section 132 ii b
It is clear that if the change in user of the building is of the kind that it makes the residential building let out for residential purpose alone change its character and become a scheduled building  as defined in section 2h of the Act without the written consent of the landlord the ground of eviction under section 132 ii b is made out
This test is fully satisfied in the present case and the order of eviction was made by the Rent Controller and affirmed by the appellate authority on this basis The High Court misconstrued the provisions to take the contrary view
A Division Bench of the Punjab and Haryana High Court in Telu Ram vs Om Parkash Garg while dealing with section 13i ii b at the Act mentioned one of its conclusion in para 21 as under b that if the result of the use of even a small portion of a building is such that the category of the premises is changed from residential non residential and scheduled and it becomes a category different from the one for which the same had been let the clause would be attracted This is how this provision appears to have been understood at least eversince than and the people in the State have arranged their affairs on that basis
Apart from the fact that this view commends to us as the correct view the desirability of continuing the settled view is also a reason in its favour
Shri Mahajan referred to the decision of this Court in Sant Ram vs Rajinder Lal and Ors 19782 RCR 601
That case is distinguishable
In that decision the purpose of the lease was not spelt out precisely while letting out a small premises to a cobbler for his business where he sometimes stayed overnight after the day s work while he went to his home on 178 holidays
It was on these facts that the tenant staying overnight in the shop on some working days was not found to constitute the ground of change of user under section 132 ii b of the Act
That decision does not assist the respondent tenant in this case
Reference was also made to Dr Sewa Singh vs Smt
Ravinder Kaur and another 1971 3 SCC 981
That judgment did not consider this question as it was not raised
The ground therein was that the High Court was not justified in taking the view in revision for the first time that the user of a part of the premises for a particular purpose was casual
No doubt the user of a part of the residential building for the profession of a medical practitioner was involved and the definition of scheduled building  in section 2h of the Act was referred but this point was neither raised nor considered
The decision in Dr Sewa Singh cannot be treated as an authority for the view that change of user of a part of a residential building let out for use solely as a residence for a scheduled purpose without the written consent of the landlord does not constitute the ground for eviction under section 132 ii b or that the ground of eviction based on personal need of the landlord contained in section 133 i a is not available to the landlord for that reason
If the logical inference from Dr Sewa Singh appears to be that then with respect we are unable to agree with the same
As a result of the above discussion this appeal is allowed and the impugned order passed by the High Court is set aside resulting in restoration of the order of eviction made by the Rent Controller and affirmed by the appellate authority
The respondent will also pay cost to the appellant
Counsel s fee Rs 3000
VPR Appeal allowed


Summary:
On the evening of 27th February 1990 informant s younger brother was attacked by twenty persons including the present two appellants with sticks etc
First Information Report was lodged at about 930 pm
on the same day in which all the twenty persons were named as the assailants
The injured died in the hospital on the next day
In course of investigation statements of the informant and others were recorded and a charge sheet was forwarded to the Court of the Magistrate wherein eighteen persons were shown as the offenders
The names of the present two appellants were not included In the report as In the opinion of the investigating officer their involvement in the commission of the crime was not established
The eighteen persons named in the report were committed to the Court of Session under Section 209 of the Code of Criminal Procedure to stand trial
When the matter came up before the Sessions Judge an application was presented under Section 319 of the Code praying to implead the appellants also as accused persons
To the show cause notice issued to the appellants they submitted that though they were not present at the place of occurrence they falsely named in the First Information Report and the investigating officer had rightly omitted their names from the charge sheet filed in Court 32 The Sessions Judge rejected the plea of the appellants and impleaded them as co accused along with the eighteen others
This was done before the commencement of the actual trial
The appellants  revision flied before the High Court was dismissed
The appellants moved this Court by special leave under Article 136 of the Constitution of India against the High Court s order contending that unless evidence was recorded during the course of trial the Sessions Judge had no jurisdiction under Section 319 of the Code of Criminal Procedure to take cognizance and implead the appellants as co accused solely on the basis of the material collected in the course of investigation and appended to the report forwarded under Section 173 of the Code in view of the clear mandate of Section 193 of the Code that since the trial had not commenced and the prosecution had not led any evidence the stage for the exercise of the power had not reached
Dismissing the appeal this Court HELD  101
On a plain reading of sub section 1 of Section 319 there can be no doubt that it must appear from the evidence tendered in the course of any Inquiry or trial that any person not being the accused has committed any offence for which he could be tried together with the accused
This power can be exercised only if it so appears from the evidence at the trial and not otherwise
Therefore the sub section contemplates existence of some evidence appearing in the course of trial wherefrom the Court can prima facie conclude that the person not arraigned before It Is also involved in the commission of the crime for which he can be tried with those already named by the police
Even a person who has earlier been discharged would fall within the sweep of the power conferred by Section 319 of the Code
Therefore stricto sensu Section 319 of the Code cannot be invoked in a case where
no evidence has been led at a trial wherefrom It can be said that the appellants appear to have been involved In the commission of the crime along with these already sent up for trial by the prosecution
Section 319 covers the post congnizance stage where in the course of an inquiry or trial the involvement or complicity of a person or 33 persons not named by the investigating agency has surfaced which necessitates the exercise of the discretionary power conferred by the said provision 105
Section 319 can be invoked both by the Court having original jurisdiction as well as the Court to which the case has been committed or transferred for trial
The sweep of Section 319 is therefore limited in that it is an enabling provision which can be invoked only if evidence surfaces in the course of an inquiry or a trial disclosing the complicity of a person or persons other than the person or persons already arraigned before it 106
Section 319 deals with only one situation namely the complicity coming to light from the evidence taken and recorded In the course of an Inquiry or trial
This may happen not merely In cases where despite the name of a person figuring in the course of investigation the investigatIng agency does not send him up for trial but even in cases where the complicity of such a person comes to light for the first time in the course of evidence recorded at the inquiry or trial
The scope of Its operation or the area of its play would also be limited to cases where after cognizance the involvement of any person or persons in the commission of the crime comes to light in the course of evidence recorded at the Inquiry or trial
Thus the Section does not apply to all situations and cannot be Interpreted to be the repository of all power for summoning such person or persons to stand trial along with others arraigned before the Court 108
Once the case is committed to the Court of Session by a magistrate under the Code the restriction placed on the power of the Court of Session to take cognizance of an offence as a court of original jurisdiction gets lifted
On the magistrate committing the case under Section 209 to the Court of Session the bar of section 193 is lifted thereby investing the Court of Session complete and unfettered jurisdiction of the court of original jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the commission of the crime can prima facie by gathered from the material available on record
The stage for the exercise of power under section 319 of the Code had not reached inasmuch as the trial had not commenced and 34 evidence was not led
The Court of Session bad however the power under Section 193 of the Code to summon the appellants as their involvement in the commission of the crime prima facie appeared from the record of the case
Once It is found that the power exists the exercise of power under a wrong provision will not render the order illegal or invalid
Joginder Singh vs State of Punjab  and Sohan Lal  Ors
vs State of Rajasthan  referred to
201The two alternative modes In which the Criminal Law cm be set in motion are by the filing of information with the police under Section 154 of the Code or upon receipt of a complaint or information by a Magistrate
The former would lead to investigation by the police and may culminate In a police report under Section 173 of the Code on the basis whereof cognizance may be taken by the Magistrate under Section 1901b of the Code
In the latter case the Magistrate may either order investigation by the police under Section 1563 of the Code or himself hold an inquiry under Section 202 before taking cognizance of the offence under Section 1901 a or c as the case may be mad with Section 204 of the Code
Once the Magistrate takes cognizance of the offence he may proceed to try the offender except where the case is transferred under section 191 or commit him for trial under Section 209 of the Code if the offence Is triable exclusively by a Court of Session
Once cognizance of an offence is taken It becomes the Courts duty to find out who the offenders really am and if the Court finds that apart from the persons sent up by the police some other persons am involved It Is his duty to proceed against those persons by summoning then because the summoning of the additional accused Is part of the proceeding initiated by his taking cognizance of an offence
203After cognizance is taken under Section 1901 of the Code in warrant cases the Court is required to frame a charge containing particulars as to the time and place of the alleged offence and the person if any against whom or the thing if any in respect of which it was committed
But before framing the charge section 227 of the Code provides that if upon a consideration of the record of the case and the documents submitted therewith the Sessions Judge considers that them 35 is not sufficient ground for proceeding against the accused he shall for reasons to be recorded discharge the accused
It Is only when the Judge is of opinion that there is ground for presuming that the accused was committed an offence that he will proceed to frame a charge and record the plea of the accused vide section 228
R becomes Immediately clear that for the limited purpose of deciding whether or not to frame a charge against the accused the judge would be required to examine the record of the case and the documents submitted therewith which would comprise the police report the statements of witnesses recorded under Section 161 of the Code the seizure memoranda etc
etc 205
Once the court takes cognizance of the offence not the offender it becomes the court s duty to rind out the real offenders and if it comes to the conclusion that besides the persons put up for trial by the police some others are also Involved in the commission of the crime it is the court s duty to summon them to stand trial along with those already named since summoning them would only be a part of the process of taking cognizance
Even though the expression take cognizance  is not defined it is well settled that when the Magistrate takes notice of the accusations and applies his mind to the allegations made In the complaint or police report or information and on being satisfied that the allegations if proved would constitute an offence decides to initiate judicial proceedings against the alleged offender he Is said to have taken cognizance of the offence
It is essential to bear in mind the fact that cognizance is in regard to the offence and not the offender
Mere application of mind does not amount to taking cognizance unless the magistrate does so for proceeding under Section 200204 of the Code
Jamuna Singh  Ors
vs Bhadai Sak  at 4041 Raghubans Dubey vs State of Bihar  and Hariram Satpathy vs Tikaram Agarwala  AIR 1978 SC 1S68 referred to
SK Latfur Rahman  Ors
vs The State 1985 PLJR 640 1985 Criminal Law Journal 1238 approved