IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.2535 of 1991 Date of decision:06.05.2009 Raj Rani and another ...Petitioners versus Krishan Bhatia and others ...Respondents CORAM: HON'BLE MR. JUSTICE K.KANNAN Present: Mr.Arun Jain, Senior Advocate with Mr. Amit Jain and Mr. Chetan Slathia, Advocates for the petitioners Mr. J.R.Mittal, Senior Advocate with Mr. Lalit Sharma and Mr. Kashmir Singh, Advocates for the respondents. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. K.Kannan, J.(Oral) 1. The revision is against the order of eviction passed on the ground that the tenant was guilty of change of user of the property of conversion of property let out for a residential purpose for a non- residential purpose. 2. The two principal contentions that are raised by the tenant in support of this argument are: (i) the change of user as urged by the landlord and as found by the authorities below referred to user of the Civil Revision No.2535 of 1991 - 2 - courtyard in the residential premises for manufacturing of almirah and boxes. The change of user had not been attributed for the entire building and consequently the provisions of the Act allowing the landlord to obtain eviction would not be attracted and (ii) there is no clear proof that there was ever a change of user in the property and reliance of the Courts below on certain photographs showing the installation of certain machineries was not sufficient to sustain the finding that there had been a change of user. 3. There was yet another ground on which the landlord had sought eviction namely that the tenant was guilty of materially impairing the value and utility of the building. The finding of the Appellate Authority was that there was no such impairment as attributed to the tenant and the said ground did not avail to the landlord to obtain eviction. Although there is no revision filed against an adverse finding as indeed no such revision was necessary in a case where the landlord is entitled to support the decree of eviction and still contend that the particular finding rendered on an issue was wrongly decided. The learned Senior counsel of both sides have addressed the arguments even on this issue relating to the material impairment of the building. The revision therefore addresses both the grounds of eviction. 4. As regards the first contention that the tenant had converted without lawful authority the residential property to non- residential use, there has been a specific denial by the tenant that the property is put to any non-residential use. The Rent Controller and the Appellate Authority however had the benefit of Local Civil Revision No.2535 of 1991 - 3 - Commissioner's report who had inspected the property, took photographs and had also given a report giving out the physical features available at the property. The photographs seemed in a large measure to influence the thinking of the Courts below relating to the non-residential user that the tenant was putting the property too. The photographs evidenced the presence of large oil engine and of certain steel sheets. This High Court, at the stage of admitting the revision, had also appointed an Advocate Commissioner to inspect the property and give a report. The direction in the warrant of commission issued on 30.08.1991 was to report whether there existed in the building, any shed for commercial purpose. A report has also been brought out who has found that no commercial activity was being carried out and he has only found cow-shed sitting on “three side walls” and towards the open space, it was resting only on one pillar which was made of bricks. The observation of the Advocate Commissioner was that the premises were being used only for residential purposes and he could not find anything relating to commercial activity. It is most likely that the evidence that was picked up at the time of trial by appointment of a Local Commissioner and which have been relied on by the Rent Controller and the Appellate Court have ceased to exist. The Local Commissioner appointed by the High Court found no commercial activity and found no shed in the courtyard. It was most likely that a tenant who was facing an action for eviction on the ground of conversion of the building had removed the evidence or had ceased to use it for commercial activity. The report secured by the High Court itself will not Civil Revision No.2535 of 1991 - 4 - conclude the issue for, it has to be seen if at the time of the filing of the petition, the tenant had put it to such a non-residential use, it would enable the landlord to apply for eviction on the said ground. 5. If we must therefore examine whether there had been any manufacturing activity at the premises in one portion, the factual findings recorded by the Rent Controller and the Appellate Authority that a portion of the building had been used for manufacturing activity of making steel almirah and boxes cannot be easily brushed aside. The learned Senior counsel appearing for the petitioner assails the findings by reference to his own specific denial of any such activity and also by pointing out that the landlord himself had admitted that there was no electric connection for the so-called commercial activity. The availability of electric connection or otherwise by itself would not be material whether any such commercial manufacturing activity is done. It all depends on the nature of the manufacturing activity for there could be a manufacture even without reference to power as in this case, making of almirah or boxes in the manner done perhaps did not require electricity. I do not intend to upset the finding rendered by the Rent Controller and the Appellate Authority that there was an activity which was not residential but not in the whole property but in a portion thereof. 6. The most significant argument therefore would be even if such an activity which was not wholly residential purposed were to be admitted, would a ground of eviction be available for the landlord? The learned Senior counsel appearing for the tenant brought my attention to the ground as mentioned under Section 13(2)(ii) of the East Punjab Civil Revision No.2535 of 1991 - 5 - Urban Rent Restriction Act: “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 (b) used the building or rented land for a purpose other than that for which it was leased, or ...................”. (emphasis supplied). 7. According to the learned Senior counsel while the Act interdicts a subletting without written consent of even a portion of the building, the legislature had adopted a different language for the case of change of user where there is an omission of the expression of “any portion thereof”. According to him, even if a portion of a building is sublet it would be actionable but unless the whole of the property is put to a different use a change of user cannot be attributed. This interpretation is an extension of how the residential or non-residential use has been defined under the Act. The non-residential building is defined under Section 2(d) as meaning as :- “a building being used solely for the purpose of business or trade.” (emphasis supplied). 8. The definition of residential is residuary which states under Section 2(g) meaning as: “any building which is not a non- residential building”. According to him, the non-residential building which uses the expression that it shall be solely for the purpose of business or trade would be considered as such only if it is not used for any other purpose than the purpose of business or trade. Inference is that unless the whole building is put to use for business or trade is not a Civil Revision No.2535 of 1991 - 6 - non-residential building. In other words, a building which is put to both residential or non-residential use would be understood under the East Punjab Act as only a residential building. 9. If the case has to be examined in the context of what was accepted by the Rent Controller and the Appellate Authority that the tenant was residing in the property but was also using the courtyard for the purpose of manufacture which was a non-residential activity, by the interpretation adopted, it would lead to only one conclusion that the activity complained of will not answer the definition of a change of user as employed under Section 10(2)(ii)(b). Even without such specific interpretation the same result obtained by judgment of this Court in Mohinder Kaur Versus Baldev Singh-1999 HRR 617. This Court relied on the decision of Hon'ble the Supreme Court in Sant Ram Versus Rajinder Lal and others-AIR 1978 Supreme Court 1601, to return a finding that user of a portion of the property by a tenant for installing a handloom and working it manually and at the same time remaining in other portion of the building for his residence would still not amount to change of user that would be actionable under Section 13 (2)(i)(b). The reference to the decision of Hon'ble the Supreme Court was in the context of its earlier ruling that a tenant who is residing in his house but using another portion of the building for making shoes ought not to be considered as a person who has put the property to a “different use”. This line of reasoning finds another dimension in a decision in Mahant Sarowar Nath Versus Tara Singh-2004(2)RCR 523, that a verandah when converted by a tenant for business on a small scale,while Civil Revision No.2535 of 1991 - 7 - still using the remaining portion of the building for a residential purpose, was held not to result in change of user. The learned Judge took a reasoning that the dominant purpose in the premises alone would govern whether it was residential or not and in that case found that the dominant purpose continued to be residential purpose and found that there was no change of user. 8. The learned Senior counsel appearing for the respondent, however, refers me to the decision of this Court in Smt. Naurati Devi Versus Hans Raj-1998(2) RCR 80, where, while deciding an issue relating to change of user under the East Punjab Urban Rent Restriction Act, the case of premises consisting of shop and kothri having been let to a tenant and the change of user by the tenant by converting it into a godown was held to be actionable. This decision, in my view, shall not apply since the Court there was repelling a contention made on behalf of the tenant that existence of a kothri did not itself imply that the premises could be used as a godown when it was let only as a shop. Again the decision did not specifically concern itself about the change of user of a portion of the building and did not have occasion to interpret Section 10(2)(i)(b). The definition of a non-residential building that our case is involved follow a reasoning of the Hon'ble Supreme Court as laid down in Sant Ram's case (supra) and it squarely governs the field. 9. The learned Senior counsel for the respondent however points out that the original tenant had died and he had left behind two sons and three daughters and only one son had challenged the Civil Revision No.2535 of 1991 - 8 - order of eviction in appeal as well as in revision. The daughters and all but the widow and son of Kasturi Lal had accepted the judgment of the Rent Controller and the revision filed only at the instance of some of the legal heirs of the tenant would result in conflicting situations of some persons amongst the legal representatives of the deceased-tenant having accepted the order of eviction while only two of them have contested the said order. He points out that even all the legal heirs were not interested in preferring the appeal or revision before the Appellate Authority or the High Court respectively. According to him, if all the other legal representatives of the original tenant had not joined along with the present revision-petitioners in challenging the decision of the Rent Controller, they ought to have been arrayed as respondents and notice must have gone, for, in the absence the appeal or the revision at the instance of some of the legal representatives, the revision would not be maintainable. The answer to this enigma is not directly available under the provisions of the Rent Restriction Act. Several of the procedures that are adopted, say, for amendment of pleadings, impleadment of parties etc. are only carried out by resort to invoking the proceedings of the Civil Procedure Code, though none of the provisions of the said Code would be applicable proprio vigore. Still the principles obtaining under the Code shows the way. The provisions under Order 41 Rule 33 that sets out the power of the Appellate Court lays down that the Appellate Court will have a power to grant a relief even in favour of persons who had not preferred the appeal. Here it is a matter of revision, but still I would think the principle could be applied by the Appellate Authority Civil Revision No.2535 of 1991 - 9 - exercising its powers under the Rent Act or of this Court that exercises its powers under Section 15(4) of the Act, so that justice is not denied to a person who is interested in the tenanted premises by the fact that he continues in possession of the property after the death of the deceased- tenant while others who do not reside at the property choose not to challenge the decision. If the tenancy itself had been in favour of a specific class of persons and all of them do not join it may have a different ramifications. The legal representatives stands on a different footing, for, a legal representative invariably represents the estate of the deceased and an action by anyone of the persons who holds his possession would be entitled to protect his own possession. The learned Senior counsel appearing for the respondent would be quick to respond that the persons that were impleaded in the petition were not merely the legal representatives but they were the legal heirs. It is immaterial that a different nomenclature is given but in a rent control petition in respect of action for eviction against heirs of a deceased-tenant, although the landlord may implead all legal heirs, it is nothing strange that only such persons among heirs who are in possession may contest the petition, for, the law relating to impleadment after the death of the party contemplates only a representation through “a legal representative” and not “a legal heir”. In my view, the fact that the other legal heirs are not before Court or they were not impleaded in appeal or revision will have no consequence detrimental to the interest of the persons who seek prosecution of the appeal or the revision. Civil Revision No.2535 of 1991 - 10 - 10. The surviving point for consideration would be on the issue of material alteration that the Appellate Court found against the landlord but which the learned counsel for the respondent urged was wrong. The Appellate Court in its judgment has referred to the fact that the tenant had constructed a shed in the courtyard and replaced an outer door of the disputed house with bigger iron door and these additions such as, construction of shed of the courtyard and the bigger door had not constituted material alteration. The learned Senior counsel would refer to the judgment of the Rent Controller which according to him expresses in better terms of how the action of the tenant had caused a material impairment. The Rent Controller observed that by the very same fact of construction of a big shed in the courtyard as shown in photographs exhibited as A-3 to A-8 and the replacement of the outer door with a big iron door would impair its value and utility. It must be remembered that the the Act itself does not contemplate any alteration without the permission of the landlord as constituting an actionable wrong rendering such act as resulting in eviction. The expression in the Act is that the act of the tenant shall cause material impairment. The term 'impairment' relates to a deterioration or a reduction in value. A value addition such as what a tenant may have done, unless it is shown that structural integrity of the building or the condition of the remaining building is in any way impaired, the mere additions which the tenant had carried out would not result in impairment. The issues resulting in such type of activity are not any longer res integra. There have been decisions of Hon'ble the Supreme Court and the High Court that every alteration Civil Revision No.2535 of 1991 - 11 - that a tenant makes, even without the consent of the landlord would not be taken as material impairment, in the absence of any scientific evidence, such as report of an expert or the evidence suggesting that the activities of the tenant has brought down or has the scope of bringing down the value and utility of the building in future. It is not possible to take a different view from how the Appellate Court has approached the issue. Under the circumstances, I find in the contention regarding the alleged act of the tenant as resulting in material impairment is not legally well founded. 11. The orders of the Rent Controller and the Appellate Authority in so far as they direct eviction of the tenant from the premises are set aside and the revision is allowed, but however, there shall have no directions as to costs. (K.KANNAN) JUDGE 06.05.2009 sanjeev