ivil Appeal No 2873 of 1987
From the Judgment and Order dated 581987 of the Punjab  Haryana High Court in Civil Revision No 2209 of 1979
Harbans Lal SK Mehta Dhruv Mehta and Aman Vachher for the Appellant
Rajinder Sachhar KC Dua and Ms Manju Chopra for the Respondent
NS Das Behl Not present The Judgment of the Court was delivered by 425 RANGANATH MISRA J
This is a tenant s appeal by special leave challenging his eviction from a business premises located at Jallandhar
Under a rent note Exh
A I the appellant had taken the premises on rent from the respondent landlord
The use to which the premises was intended to be put was running of a cycle and rickshaw repairing shop
As far as relevant on the allegation that the tenant had put the premises to different use an application for his eviction was made under section 132iib of the East Punjab Urban Rent Restric tion Act 1949
The Controller found that the appellant had continued the business of repairing of cycles and rickshaws but side by side had for a period of about seven months been selling televisions in the premises but he stopped the same as it was not viable
According to the Controller this did not constitute user for a purpose other than that for which the premises was leased and he accordingly rejected the peti tion
The appellate authority at the landlord s instance held that the statutory condition was satisfied and granted eviction
The High Court when moved by the tenant declined to interfere
The short question that arises for consideration is whether there has been a violation of the terms of tenancy by using the premises for a purpose other than that for which the premises had been leased
The tenant did not dispute that he had taken the premises for running a repair shop of cycles and rickshaws
In his statement he said that he had commenced the business of selling the televisions side by side in view of the slump in the cycle and rickshaw repairing business
He also accepted the position that he had not obtained the consent of the landlord when he started the TV business
The landlord has accepted the position that in the rent note it was not written that the respondent would not do any business in the shop in dispute except the cycle or rickshaw repairs
On these facts it has now to be decided as to whether the premises has been used for a purpose other than that for which it had been leased
Reliance was placed on the Full Bench decision of the Punjab High court in Des Raj vs Sham Lal AIR 1980 P  H 229 where the question for consideration was as to whether when the lease was for the purpose of a shop without anything more specific user thereof as a godown amounted to change of user
The High Court in course of the discussion in the judgment rightly drew the distinction between resi 426 dential and non residential premises and also classified non residential buildings into known categories like shop godown restaurant cinema hotel etc
In course of the discussion the Full Bench referred to the decision of this Court in Moti Ram vs State of Madhya Pradesh  and came to the conclusion that when the letting out purpose was location of a shop and it was exclusively used as a godown it amounted to a change of user
Not much of support is directly available for the resolution of the present dispute from that judgment
Reliance was also placed on a decision of this Court in the case of Mohan Lal vs Jai Bhagwan  where the very provision of the East Punjab Act was considered in a case of eviction
The decision of this Court in the case of Maharaj Kishan Kesar vs Milkha Singh CA No 108664 decided on November 10 1965 was referred to therein
That again was a decision under the very Act and the dispute related to the allegation of change of user when petrol was sold as an allied business of the avowed purpose of locating the workshop
The Court found
that location of a petrol pump could not be regarded as not being a part of motor workshop business
Rightly our learned brother Mukharji J indicated that the ratio in Maharaj Kishan Kesar s case did not provide any guideline of general nature
What was said in pars 9 of his judgment is perhaps useful
Our learned Brother quoted the observations of Lord Diplock J in Duport Steels Ltd vs Sirs and said While respectfully agreeing with the said observations of Lord Diplock that the Par liament Legislates to remedy and the judiciary interprets them it has to be borne in mind that the meaning of the expression must be found in the felt necessities of the time
In the background of the purpose of rent legisla tion and inasmuch as in the instant case the change of the user would not cause any mis chief or detriment or impairment of the shop in question and in one sense could be called an allied business in the expanding concept of departmental stores in our opinion in this case there was no change of user which at tracted the mischief of section 132iib
 On that conclusion the order of eviction was reversed
Letting of a premises can broadly be for residential or commercial purpose
The restriction which is statutorily
provided in section 132iib of the Act is obviously one to protect the interests of the landlord and is intended to restrict the use of the landlord s premises 427 taken by the tenant under lease
It is akin to the provision contained in section 1080 of the dealing with the obligations of a lessee
That clause pro vides The lessee may use the property and its products if
any as a person of ordinary prudence would use then if they were of his own but be must not use or permit another to use the property for a purpose other than that for which it was leased   A house let for residential purpose would not be available for being used as a shop even without structural alteration
The concept of injury to the premises which forms the foundation of cl
o is the main basis for providing clb in section 132ii of the Act as a ground for the tenant s eviction
The Privy Council in U Po Naing vs Burma Oil Co AIR 1929 PC 108 adopted the same considera tion
The Kerala High Court has held that premises let out for conducting trade in gold if also used for a wine store would not amount to an act destructive of or permanently injurious to the leased property Simi larly the Bombay High Court has held that when the lease deed provided for user of the premises for business of fret work and the lessee used the premises for business in plas tic goods change in the nature of business did not bring about change of user as contemplated in section 108o of the The landlord parts with possession of the premises by giving a lease of the property to the tenant for a consider ation
Ordinarily as long as the interest of the landlord is not prejudiced a small change in the user would not be actionable
In this case the premises was let out for running of a repair shop
Along with the repair business sale of televi sions was temporarily carried on
We do not think this constituted a change of user within the meaning of section 132iib of the Act so as to give a cause of action to the landlord to seek eviction of the tenant
The appeal is allowed and the order of eviction passed by the appellate authority and affirmed by the High Court is vacated and the order of the Controller is restored
Parties are directed to bear their own costs throughout
TNA Appeal allowed


Summary:
The petitioners were arrested on March 23 1988 and produced before the Chief Metropolitan Magistrate who remanded them to jail custody
During the pendency of peti tioner s application for bail the prosecution filed charge sheet on June 23 1988 for offences under Section 21 23 and 29 of the 
Thereafter on the petitioners  application for bail under Section 1672 Cr
PC on the ground that the charge sheet was filed after the expiry of ninety days of their arrest the Magistrate enlarged them on bail
On an application under sec
4392 read with Section 482 of the Cr
PC filed by the prosecution for cancella tion of the bail stating that since two of the accused were earlier absconding the investigation in the case could not be completed within the time frame the High court cancelled the bail order
Hence the special leave applications by the petitioners
On the question whether the discretion exercised by the High Court was legally sustainable and whether the accused had a special right to remain on bail merely because they had been enlarged under Proviso a to Section 1672 of the Code 378 Dismissing the Special Leave Petitions HELD An order for release on bail under proviso a to Section 1672 of the Code of Civil Procedure may appropri ately be termed as on order on default
Indeed it is a release on bail on the default of the prosecution in filing charge sheet within the prescribed period
The right to bail under the provision is absolute
It is a legislative command and not Court s discretion
If the investing agency fails to file chargesheet before the expiry of 9060 days as the case may be the accused in custody should be released on bail
At that stage merits of the case are not to be exam ined
In fact the Magistrate has no power to remand a person beyond the stipulated period of 9060 days
He must pass an order of bail and communicate the same to the ac cused to furnish the requisite bail bonds
381E G The accused cannot claim any special right to remain on bail
If the investigation reveals that the accused has committed a serious offence and charge sheet is filed the bail granted under proviso a to Section 1672 could be cancelled under Sections 4375 or 4392 of the Code
381H In the instant case the offences alleged are of serious nature and the discretion exercised by the High Court does not call for any interference
382A Raghubir Singh vs State of Bihar   referred to