JUDGMENT [ENTITY], J.
1. The challenge in revision here is to the order of ejectment passed against the tenant on the ground of change of user.
2. On March 20, 1987, [ENTITY] and [ENTITY] granted a lease of vacant land in Hissar to the tenant [ENTITY]. The lease being for 32, years at a rent of Rs. 72/- per annum. The parties to this lease namely; [ENTITY], [ENTITY] and [ENTITY] have ail since died leaving behind this legacy of litigation for their legal representatives to continue and pursue.
3. According to the lease deed exhibit R/10, the land had been given for 'barai lagana karkhona' that is, for setting up a factory, but it also went on to say "hasab zarurat was aroom wa mafad khud apni marzi he mutcbak mokanat kham wa pukhta opne kharohe se iss ahata me taiyar karega." meaning thereby that as per his need and convenience, the lessee may, if he so wishes also, at his own cost, con' struct kacha or paeca houses. On the expiry of the lease, however, as per its terms, the lessee was requited to remove the malba of any construction made thereon.
4. The record shows that soon after taking the land on lease, the lessee put up an ice Factory there and followed this up by also constructing a residential house nearby. Sometime, around the year 1964. however, the ice Factory was shifted to [ENTITY] and thereafter, no factory remained on the laud but the-tenant [ENTITY] continued living in his residential premises which he had constructed on the rented land.
5. According to the landlords, the shifting of the ice Factory to [ENTITY] and the land being used thereafter for residential purposes only constituted change of user of such laud Tendering the tenants liable to ejectment on this ground.
6. The plea of the tenants on the other hand, was that the land had been let, not only for installing a factory, but for such use as they may desire and further that since 1964-65, with the consent of [ENTITY] and without any objection from the landlords' the land was being used exclusively for residential purposes and they, could not, therefore, raise any objection on this ground now.
7. A controversy thus emerges with regard to the purpose for which the land was let and whether or not the use of the land for residential purposes only was with the consent of the landlords. A plea of waiver and acquiescence too was, in this behalf, sought to be raised for fie first time in revision here.
8. As regards the purpose of the lease, there, can be no escape from the conclusion that the land had been let for a commercial purpose. A plain reading of the terms of the lease deed exhibit R/10 would show that the right grained to the tenants to; construct houses thereon too was sub-servient to the main purpose, which was the setting up of a factory. With the factory ceasing to exist, change of user stands writ large when the laud is now being used exclusively for residential purposes.
9. The consent of the landlords to the change of user of the land from commercial to residential purposes is clearly not borne out from any material on record Admittedly, there was never any such written consent nor indeed is there any mention made by the teaant-R. W. 5- [ENTITY] of even a verbal consent of the landlord in this behalf. All that [ENTITY] stated was that he had good relations with the landlord-[ENTITY] and that., he [ENTITY] had agreed to the closing of the Ice Factory. This, on the face of it, cannot suffice to absolve the tenants from the consequences flowing from the change of user of the rented laud.
10. Equally untenable is the plea of waiver and acquiescence. The law is well settled, that the rights and obligations of the landlords and tenants have to be determined in the context of the provisions and ambit of the rent law. Where, as in the present case, the legislature speaks of "written consent' of the landlord for the change of user of the rented land or premises, as the case may be, mere acquiescence or waiver provide no escape route to the tenant from this requirement. The judicial precedent to this effect being, [PRECEDENT], where ejectment of the tenant was sought on the ground of sub-letting. Acceptance of rent from-the tenant despite the landlord knowing of the sub-letting, and raising, no objection to it, was held to constitute no estoppel, [ENTITY], J. observing in this behalf :-
"It is well settled cannon of construction that effect must be given, wherever possible to each and every, word, clause, and sentence of a statute When the Legislature uses the adjective 'written' to specify the nature of the "consent' it will be presumed that any other kind of consent, i.e. merely by word of mouth, acquiescence or conduct was necessarily excluded. -The Legislature is supposed to be precise and no words in a statute are to be deemed redundant or superfluous. To hold otherwise would tender the word written' immediately preceding the word 'consent' in the above quoted clause of [SECTION], 'nugatory. In my opinion, therefore, there can be no estoppel against these express and clear provisions of the statute"
11. This view was later approved and followed in [PRECEDENT], where it was held "that when the Legislature uses the adjective 'written' to specify the nature of the 'consent', it will be seen that any other kind of consent, that is, merely by word of mouth, acquiescence or conduct was necessarily excluded -"
12. Counsel for the tenants Mr. [ENTITY], however, sought to canvass the contrary proposition, namely that waiver and acquiescence can constitute an estoppel by citing its support [ENTITY] v. Darshan Lal Jain, (1986-2) 90 P. L. R. 44, where, without the written, consent of landlord, the tenant had made structural alterations in the shop by removing a wall adjacent to it. Knowing this, the landlord' continued receiving rent for over four years. It was held that if the lessor is aware of the continuing breach and acquiesces in it for a long period, where, for instance, with full knowledge of it, he receives rent, it will be presumed that be had either released the covenant or granted licence for the user.
13. The apparent backing provided to the point urged by [ENTITY]'s case (supra) is more illusory than real, when regard is had to the fact that ejectment there had been sought not on the ground of change of user, but material impairment of the value and utility of the building, whereas, the written consent of the landlord is an essential pre-requisite for the former, there is no such requirement for the latter
14. No help is available from the other case cited either, namely; [PRECEDENT], where, ejectment of the tenant had been sought on the ground that the demised shop had been let out to him in 1953 for the sale of trunks, but in 1955-56. he had also started making trunks there It was held that the point of change of user did not arise for determination and waiver was not even adverted to.
15. It follows, therefore, that waiver and acquiescence, if any, on the part of the landlord provide no defence to the tenant here
16. Next followed an attempt by the counsel for the tenant to contend that the change of user had, at any rate, taken place in 1987, that is, before the [ACT] came into force and ejectment thereunder, on this ground, was not, therefore, permissible, and further that the change of user, had, at any rate, taken place before the lease expired in 1989 and thereafter by acceptance of rent by the landlord, anew tenancy came into being and there was thus no change of user The argument being that as the factory ceased to exist in 1969 and its use thereafter was exclusively for residential purposes and has continued to be so ever since, no change of user thus arises.
17. It will be seen that it is for the first time in revision hero that either of these pleas have been raised. What is more, there is no finding, issue or even any factual basis for holding that the change of user had occurred in 1937.
18. As regards a new tenancy coming into being, during the subsistence of the lease, no such case was ever set up either in the pleadings or before the rent controller and the appellate authority. [PRECEDENT], which was sought to be cited in support is clearly inapplicable as a precedent here, as the matter raised and dealt with there partained to [SECTION] of the [ACT] concerning a tenant holding over. At any rate, if, as discussed earlier, waiver and acquiescence cannot operate as an estoppel against the landlords, mere acceptance of rent, after the change of user, cannot be construed as creation of a fresh tenancy with such change of user of the land concerned
19. An argument was then raised that as the change of user of the land from factory to residential purposes did not result in any damage to it, such change was not actionable. A string of authorities concerning shops let out for one purpose being used for another were referred to in this behalf. These may be dealt here. [PRECEDENT], was a case where a shop let out for a liquor vend was converted to general merchandise business It was held that as this change of user would not cause any mischief or detriment or impairment of the shop and that one sense could also be called an allied business in expanding concept of departmental stores, there was no change of user in this case which would attract the mischief of [SECTION] [ACT] Similarly, in [PRECEDENT] where a shop let out for the sale of liquor was used for the business of sale of utensils after the liquor licence of the tenant had been cancelled, it was held that there was no change of user as the premises were being used for another commercial purpose involving no inspirment of the value or utility of the business. [PRECEDENT] son of [PRECEDENT] concerned premises Jet out as a shop, which, from the very inception of the tenancy were used as a godown. The rent note permitted the tenant to use this shop for his needs It was held that do change of user was involved. There is then [PRECEDENT]; concerning lease of land. The land had been leased for 'con struction of factory and Kacha and Pacca shop. The tenant built only shops thereon, but no factory. It was held that this did not amount to mis-user of the rented land.
20. What is really apt and relevant here are the observation of the Supreme Court in [PRECEDENT], which concerned a shop let out for repair of cycles and cycle rikshaws. For a while the tenant also sold Television Sets at the shop. It was held that ordinarily, so long as the interests of the landlord are not prejudiced, a small change in the user would not be actionable. It was further observed :
"Letting of a premises can broadly be for residential or commercial purpose. The restriction which is statutorily provided in [SECTION] 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, taken by the tenant under lease. It is akin to the provision contained in [SECTION] of the [ACT] dealing with the obligation of a lessee That clause provides; 'The cases may use the property and its products, if any, as a person of ordinary pruderies would use them if they were of his own, but he 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 ".
21. Seen in this light, where in a case like the present, land let out for commercial use is utilised exclusively for residential purposes, change of user, actionable under the rent law clearly stands established.
22. Faced with this situation, counsel for the tenant sought to raise another plea again for the first time in revision hare that the relief claimed could not be granted to the landlord as he had failed to specifically plead that the change of user was without his. consent, in waiting Reliance 10 this behalf being placed upon [PRECEDENT], where it was laid down that when ejectment is sought on the ground of personal necessity, it is incumbent upon the landlord to specifically plead and prove the essential ingredients of [SECTION] of the [ACT] and failure to do so would reader the application liable to dismissal.
23. The principle enunciated in '[ENTITY]'s case (supra) was later followed and applied in [PRECEDENT] concerning change of user, where no pica had been put-forth that it was without the consent of the landlord.
24. What is pertinent to note here is the contention raised in [ENTITY]'s case (supra), namely; that if some facts required to be pleaded are not averred in the pleadings, but evidence has been Jed by both parties and the Court comes to the conclusion that the tenant has not been taken by surprise by the absence of certain pleadings, the landlord should be entitled to. get the necessary relief, even in the absence of these pleadings. Cited in support being the observations of the. Supreme Court in [PRECEDENT], which are reproduced hereunder :-
"Where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions, but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiates proceedings The suit could not be dismissed on this narrow ground, and also there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion and neither party claimed that it had any further evidence to offer."
The Court dealt with this matter by observing : -
"In the present casa, we are concerned only with the question as a principle of law as to whether it is essential to plead in an eviction application the ingredients of sub-clauses (b) and (c) and not the question that if in a particular case these' ingredients are not pleaded, but the parties have led evidence with regard to them, what will be the effect " In any given case, where facts have not been averred in the pleading a number of questions can arise as to whether proper evidence has been adduced by the landlord regarding those facts which, do not find place in the pleadings and secondly whether such evidence will be admissible or not and lastly, whether the tenant was taken by surprise or not and bad led evidence with full knowledge of the requisite contentions raised by the landlord and whether the tenanat had in those circumstances been prejudiced or not, The Court would be required to give full consideration to the contentions raised by the respective parties and the facts and circumstances of each case before giving its decision in favour of the landlord or the tenant "
25. As mentioned earlier, it is for the first time here in this Court that absence of a specific plea regarding change of user being without the written consent of the landlord has been raised. A reading of the material on record would, however, show that both parties led evidence and contested the case treating the stand of the landlords to be that the change of user was without their consent. There is no suggestion that absence of such a specific plea took the tenant by surprise or that he was in any way prejudiced thereby, nor indeed could counsel point to any material that the tenant may or could have placed on record, had this plea been there in the pleadings. Such thus being the circumstances, no occasion is provided here to deny relief to the landlord merely on this account.
26. Finally, there was an attempt on the part of tenant to question the extent of the area from which he was liable to be ejected The stress being laid upon the fast that in the lease deed exhibit R/10, the area covered thereby was said to measure 8000/9000 square feet, whereas ejectment had now base ordered from 1100/1200 square feet. Here again, in dealing with this matter, it must, at the very out set be noted that no such plea is to be found in the written statement filed by the tenants. It was only in the course of adducing evidence that the case was sought to be set up that the lease pertained to 8000/9060 square feet and that the balance area comprised land which bad been taken on rent from one [ENTITY] who had migrated to Pakistanis 1947 and the tenants had thereafter become owners of this land by adverse possession. This plea of land having been taken from [ENTITY], is not supported by any documentary evidence. No exception can thus be taken to it being negatived by the rent controller as also the appellate authority.
27. What is significant in considering this aspect of the case is that the area of the rented land was defined by its boundaries as given in the petition. Neither of these boundaries has been shown to be in any manner incorrect. All that was mentioned in this context was that the petition for ejectment was not accompanied by a site plan. The site plan of the land has, however, come on record when the matter was before the appellate authority. Here again, counsel for the tenant could point to no error in this site plan.
28. All that now remains to deal with is the application of the tenant for adducing additional evidence in appeal, which was declined by the appellate authority. Such additional evidence being copies of the property tax registers of the years 1952-53 to 1968-77, assessment of house-tax from 1958-59 to 1985 86 and copies of sale deeds, Jamabandies and [ENTITY].
29. Additional evidence in an appeal is governed by the principles as set-forth in [SECTION], [SECTION] of the [ACT]. It is well-settled that these provisions cannot be construed to provide a second or further opportunity, as it were, to a party to add to evidence already on record or to fill up gaps in its case merely for the asking. The Court is, no doubt, empowered to admit additional evidence for 'any other substantial cause,' but as held in [PRECEDENT], the requirement of the Court on this account is not ordinarily likely to arise unless some inherent lacuna or defect becomes apparent on an examination of the evidence already on record - Such is clearly not the case here.
30. It will be seen that the revenue records and the property tax assessment records as also the other documents were clearly available to the tenant and could have been produced before the rent controller. These documents are also not such as the Court requires to enable it to pronounce judgment nor indeed does their production at the appellate stage satisfy any of the other essential requirements of [SECTION], [SECTION] of the [ACT] No exception can thus be taken to the appellate authority having declined the tenants' application for additional evidence.
31. Taking, therefore, an over-all view of the material on record, in the cob text of the matters discussed, the impugned order of the appellate authority clearly warrants no interference in revision. This revision petition is accordingly hereby dismissed with costs. Counsel fee Rs. 500/-.