C.R. No. 2395 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 2395 of 2010 Date of Decision: 08.09.2010 Ashok Kumar .... Petitioner Versus Raman Kumar ... Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present : Mr. H.S. Batth, Advocate for the petitioner Mr. Veneet Sharma, Advocate for the respondent 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 ALOK SINGH, J. (ORAL) Present petition is filed assailing order dated 8.3.2010 passed by Appellate Authority, Amritsar whereby eviction petition filed by the landlord (respondent herein) was allowed directing eviction of the tenant – revisionist. The brief facts inter alia are that landlord-respondent filed eviction petition contending that shop in question was taken by the tenant on monthly rent of Rs. 400/- and tenant has executed rent note in favour of landlord on 15.6.2004 for the purpose of doing business w.e.f. 30.6.2004 for a period of 11 months; tenant has neither tendered nor paid rent w.e.f 30.6.2004 upto the date at the rate of Rs. 400/- per month; tenant is also liable to pay house tax @ 15% per annum. Tenant took the shop for the purpose of doing business, but now he converted the shop into godown for keeping sugar bags which does not fall within the definition of day to day C.R. No. 2395 of 2010 2 business as such, he has changed the user without the written consent and permission of the landlord, hence he is liable to be ejected on this ground alone. Tenant refuted the claim of the petition by way of filing written statement. Learned Rent Controller dismissed the eviction petition vide judgment dated 4.4.2008. Feeling aggrieved and statutory appeal was filed before the learned Appellate Authority which was allowed by the learned Appellate Authority vide impugned order dated 8.3.2010. Learned counsel for the petitioner-revisionist vehemently argued that using shop as a godown does not amount to change of user. It is further argued that rent deed is silent about the purpose of use of the shop, hence, merely because the tenant has stored some sugar bags in tenanted shop does not amount to change of user. Learned Appellate Authority in the impugned order in paragraphs No. 24 and 25 has observed as under:- “24. Coming to the evidence led by the respondent, RW- 1 and RW-2 have no concern with the respondent as they deposed in cross-examination regarding no knowledge about the running of business by respondent in the demised premises or is used as godown. Their depositions are relating to sale purchase only. RW-4 Janak Raj has deposed that Ashok Kumar is doing the business of Sugar. From his statement, it stands established that respondent is not running the karyana shop rather while dealing sugar only he is wholesale dealer. There inference comes out that demised premises opens while loading and unloading of sugar. Similarly, Ashok Kumar while appearing as RW-3 admitted that the electric meter only comes in operation if C.R. No. 2395 of 2010 3 the shop is opened. When the respondent Ashok Kumar himself admits that the shop remains closed then the inference is to be drawn that premises are used as godown. Moreover, Ashok Kumar has admitted the correctness of Ex. AW2/1 which is report of employee of P.S.E.B. That since April, 2005 to February 2006, the electric consumption is nil. However, to meet out this fact the respondent counsel has tried to establish that respondent remain sick and due to sickness he remained in CMC Hospital, Ludhiana but this argument is without any documentary corroboration. Relying upon this argument, appellant cannot be debarred from the relief. 25. Having regard to the discussion made above and further going through the authorities in which the law laid down by Hon'ble Apex Court and our Hon'ble High Court the demised premises were rented out to the respondent to run a shop but the respondent instead of running a shop has converted it into godown which is change of user. Accordingly, findings of Rent Controller upon issue No. 2-A stands set aside and this issue is decided in favour of applicant and against the respondent.” No perversity or illegality is pointed out in the findings recorded by the Appellate Authority. Learned Division Bench of this Court in the case of Chhaju Ram vs. Tulsi Dass and another, reported in 1977 PLR 259 held as under:- “That the 'shop' cannot be equated with a 'godown' because the dominant purpose of the shop is the sale of the goods and not storage. A servient purpose cannot change the complex of the dominant purpose. If the C.R. No. 2395 of 2010 4 goods are only stored and the sale is not at that place but at different premises, then it will be a 'godown' and cannot fall within the ordinary dictionary meanings of the word 'shop'. The purpose of storing goods at a premises is different from the sale of those goods. It is understood as such even in common parlance by the ordinary people and the trading community. Thus, 'shop' means a 'shop' and 'godown' means a 'godown' and the words cannot be intermixed or alternatively used. Full Bench of this Court in the matter of Des Raj vs. Sham Lal, reported in 1980 AIR (Punjab) page 229 has held as under:- “The landlord let the premises to the tenant which were described as shop in the rent note. The tenant used the shop for storing bags of grain and boxes of tea and transacted no business in the shop. The landlord sued out for eviction of tenant on that tenant was using the shop as godown which amounted the change of user. If a demised building is identified as a “house” in a lease-deed, it would be taken that the parties had used the expression “house” in the sense in which the “house” is understood in common parlance or as indicated by it dictionary meaning. Similar would be the situation where the expression 'shop' is used. In such a case, the parties would be taken to have used the expression “shop” as understood in common parlance and the meaning given to the same in the dictionaries. Where a demised “building” is identified merely as “shop”, then the same can be used only as a “shop”, although various kinds of trade could be carried on therein, but if the said demised 'building' came to be used C.R. No. 2395 of 2010 5 later on exclusively as “residential building”, then that would tantamount to the change of user. Similarly, if such a demised “building” was put to use exclusively as a “godown” [for the moment assuming that the expression “godown” connotes a “building” that is used for the purposes of only stocking provisions therein], then that would tantamount to the change of user. The reason being that when the demised “building” is used as a “shop” it is being put to constant use by the lessee which, by implication, ensures its proper upkeep like timely repair, timely whitewashing etc., but when a building is used as a “godown”. Which is merely used for dumping goods therein, such an upkeep may neither be possible nor, by implication, envisaged as such. A “godown” remains mostly closed, while a “shop” remains mostly open.” In view of the dictum of the Division Bench as well as Full Bench of this Court, I find no illegality or perversity in the order impugned herein. Revision is dismissed. At this stage, learned counsel for the petitioner states that some reasonable time may be granted to the petitioner-tenant to vacate the shop. Learned counsel for the respondent states that he has no objection if one year time is granted to the tenant to vacate the shop in question on payment of market rent as prevailing today. Having heard, it is directed that petitioner shall not be evicted from the shop in dispute pursuant to the impugned order till 31.8.2011 provided that he shall file usual undertaking before learned Rent Controller within two weeks from today of the effect that he will hand over peaceful physical possession to the landlord on or before C.R. No. 2395 of 2010 6 31.8.2011. He shall also furnish undertaking of the effect that petitioner shall be paying mesne profit @ Rs. 1,000/- per month from the date of impugned order. Arrears shall be paid within two weeks from today and petitioner shall keep on paying mesne profit to the landlord on or before 10th of every month. If no undertaking is furnished by the petitioner within two weeks or any breach is committed, eviction order shall be executed forthwith. (ALOK SINGH) 08.09.2010 JUDGE reena