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2000(2) Supreme 553
SUPREME COURT OF INDIA
(From Punjab & Haryana High Court)
S. Saghir Ahmad & D.P. Wadhwa, JJ.
Jagdish Lal -Appellant
versus
Parma Nand -Respondent
Civil Appeal No. 2231 of 2000
(Arising out of SLP (C) No. 14147 of 1998)
Decided on 27-3-2000
Counsel for the Parties :
For the Appellant : Dushyant Dave, Sr. Advocate, Haris Beeran, Siddharth Dave, M.K. Dua, Advocates.
For the Respondent : Rakesh Dwivedi, Sr. Advocate, Kailash Vasdev, Satvik Verma, Advocates.
(ii) Haryana Urban (Control of Rent & Eviction) Act, 1973-Section 13-Eviction on ground of change of user of premises-What amounts to change of user-Premises let out for one business-User of premises for another business-If new business is allied business or ancillary to main business it would not amount to change of user.
Mere change of business does not amount to change of user within the meaning of the Act. The philosophy behind this proposition seems to be that a shop which is meant to be used exclusively for commercial purposes must be used for that purpose. If the tenant has started a business in that shop and that business does not succeed and it does not bring in sufficient monetary returns to enable him to earn his livelihood, he would naturally abandon that business and start a new venture. The new venture may not be the same which was initially carried on. It will be permissible only to a limited extent, that is to say, if the tenant was permitted to sell his goods and the shop was meant as an outlet for the goods manufactured by him elsewhere, he cannot start the manufacturing process in the shop itself. Where the new business started by the tenant in the premises let out to him was an allied business or a business which was ancillary to the main business, it would not amount to change of user. It is true that where a premises is let out for commercial purposes, carrying on of a new business activity therein would not change the nature of the building and it would still remains a commercial building. But that is not enough. Having regard to the provisions of the Act and the intendment of the Legislature in providing that the tenant would not use the premises for a purpose other than that for which it was let out, the new business should either have some linkage with the original business, which under the agreement of lease the tenant was permitted to carry on, or it should be an allied business or ancillary to that business. Where local laws provide a specific prohibition in respect of the use of the premises under the Rent Legislation and that provision has been interpreted in a particular manner by the High Court consistently, it would not be proper to disturb the course of decisions by interpreting that provision differntly. (Paras 13 & 17)
(iii) Haryana Urban (Control of Rent & Eviction) Act, 1973-Section 13-Eviction on ground of change of user of premises-Building let out for business of General Merchant, Readymade and Cloth Merchant-Tenant using building for purpose of restaurant/selling sweetmeat-Change of business amounted to change of user of premises-Tenant, however, reverting back to original business pending eviction proceedings-Change of business was for a very short period-Eviction on ground of change of user of premises would not be justified. (Para 18)
Key Points: - The judgment states that change of user requires that the new business have linkage with the original or be allied/ancillary; mere change of business does not automatically amount to change of user (!) (!) . - If the tenant undertakes to vacate by a fixed date in High Court, this undertaking does not bar the right to approach Supreme Court under Article 136; undertaking does not affect the constitutional remedy (overruling earlier precedents) (!) (!) . - Where the new business is only temporary and the tenant reverts to the original business during the eviction proceedings, eviction may not be justified; ends of justice may warrant allowing tenancy with adjusted rent in certain circumstances (!) . - The decision discusses previous cases (Rattan Lal v. Asha Rani, Mohan Lal v. Jai Bhagwan, Dashrath Baburao Sangale, etc.) to illustrate how changes of user have been treated historically (!) (!) . - The definition of "use for a purpose other than that for which it was leased" focuses on the actual use and whether it constitutes an incompatible purpose, not merely a new business in a commercial setting (!) (!) .
JUDGMENT
S. Saghir Ahmad, J.-Leave granted.
2. The appellant is the tenant of the shop in question under a lease dated 21.3.1982 executed by the respondent in his favour, under which the shop was let out for the business of Maniyari [(General Merchant) Readymade & Cloth Merchant] on a monthly rent of Rs. 600/-. On 15th June, 1987, the respondent filed a petition under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short, the "Act"), for eviction of the appellant on several grounds, including the arrears of rent, structural alteration, bona fide need and changing the user of the shop for which it was let out. This application was allowed by the Rent Controller by his order dated 25th March, 1995 only on the ground of change of user of the shop. The other grounds, namely, the grounds relating to arrears of rent, structural alterations and genuine need of the landlord were rejected. The appellate authority before whom an appeal was filed by the present appellant dismissed the appeal by judgment dated 4th April, 1998 and upheld the judgment passed by the Rent Controller. The Revision filed thereafter in the High Court was dismissed on 25th May, 1998.
3. Learned counsel appearing for the respondent has raised a preliminary objection that since the appellant had given an undertaking before the High Court that he would vacate the shop in question by a specific date provided he was granted time for that purpose, the present appeal is not maintainable. The relevant portion of the High Court judgment which relates to this undertaking is reproduced below:
"Mr. Goel, learned counsel for the petitioner, states that the petitioner be allowed some reasonable time to vacate the premises. He undertakes on behalf of the petitioner to hand over vacant possession to the landlord on or before September 1, 1998 and also undertakes to deposit the arrears of rent, if any, together with future rent within two weeks from today. In case the petitioner deposits the arrears of rent, if any, alongwith future rent within two weeks, the ejectment order against him will not be executed till September 1, 1998 in view of his undertaking."
4. It is contended that since the appellant had furnished an undertaking in terms of the judgment passed by the High Court, he was bound to vacate the premises. Since he did not honour the undertaking and instituted the present appeal in this Court by filing initially a Special Leave Petition under Article 136 of the Constitution, he cannot be heard in the matter as the filing of the Special Leave Petition in this Court amounts to a breach of the undertaking given to the High Court which must be honoured by him and he must be directed to vacate the premises in term of the undertaking. Reliance for this purpose has been placed by the learned counsel for the respondent on a decision of this Court in Thacker Hariram Motiram v. Balkrishan Chatrabhu Thacker & Ors.1, in which also an undertaking was given by the tenant and on that undertaking he was allowed sufficient time to vacate the premises. It was held that in terms of the undertaking given by him, he must vacate the premises. We are not prepared to accept this contention.
5. The question was examined by this Court in a subsequent decision in P.R. Deshpande v. Maruti Balaram Haibatti2, in which it was laid down by a Bench of three Judges of this Court that even if the tenant gives an undertaking in the High Court to vacate the premises, his right to approach this Court under Article 136 of the Constitution is not affected. The tenant would still have a right to approach the higher court and even seek interim relief of stay of eviction despite the undertaking given by him to vacate the premises. This decision, decisively and clearly, has the effect of overruling the earlier decision in Thacker Hariram Motiram s case (supra) as also two other decisions in Vidhi Shanker v. Heera Lal3 and in Ramchandra Jai Ram Randive v. Chandanmal Rupchand4. The prelimi
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