A change of user of rented premises without the landlord's consent is actionable under Section 14 (2) (II) (B) of the Himachal Pradesh Urban Rent Control Act, 1987, if it is not allied to the original purpose, impairs the utility or causes damage to the building, or creates nuisance.

Devinder Gupta, J —Petitioners have in this petition filed under section 24 (5) of the Himachal Pradesh Urban Rent Control Act, 1987 (Act No. 25 of 1587) (hereinafter referred to as the Act) sought the setting aside of an order passed on 29th October 1990, by the Appellate Authority, Hamirpur, dismissing their appeal and thereby confirming the order passed on 20th January 1988 by the Rent Controller, Hatnirpur-

2. Eviction of tenant-petitioner No 1 from the premises in question was sought by the landlady-respondent on three grounds l (1) he being in arrears of rent at the rate of Rs. 150 per month, (2) he having sub-let the premises without the written consent of the landlady in favour of his son, petitioner No. 2, and (3) the tenanted premises having been subjected to conversion of user from banana store to trunk manufacturing and sale thereof and that too without the prior permission or consent of the landlady. The Rent Controller found the rate of rent to be Rs. 55 per month as against Rs. 150 per month, as alleged by the landlady and found that the tenant was not in arrears of rent. The plea of the landlady that the premises have been sub let was also negatived. However, it was held that the tenant had changed the user of the premises without her consent. Accordingly, an order of eviction on this ground alone was passed.

3. Feeling aggrieved, two separate appeals were filed, one by the tenant joining alongwith him his son, the alleged sub tenant and the other by the landlady. The Appellate Authority vide the impugned judgment dismissed both the appeals. The present revision petition, at the behest of the tenant, joining alongwith him his son, seeks to challenge the said judgment of the Appellate Authority. The landlady, however, has not filed any revision petition before this Court.

4. The only question which now survives and arises for determination is as to whether in the facts and circumstances of the case, on the finding recorded by the two authorities below with regard to the change of user of the premises, without the written consent of the landlady, order of eviction is sustainable in law.

5. It is urged by the learned Counsel for the petitioners that there was no clear evidence on record, nor it was admitted by the tenant that the demised premises were let out only to run banana business and since there was no prohibition imposed as regards the user of the premises at the time of letting out the same, there was no question of change of user. Even if there is change of user, as found by the two authorities below, even then there being nothing on record to suggest that the interest of the landlady, by such change of user has in any manner caused any prejudice to the landlady and the change being of insignificant nature and incidental and allied to the business, would not be actionable I have heard the learned Counsel for the parties and gone through the record.

6. The first submission made by the learned Counsel for the petitioners has no force, in view of the pleadings of the parties. In the eviction petition there is a clear and categorical averment made in para 5 by the landlady that the premises were rented out to the tenant to be used only as a banana store. To this para the tenant in para 5 of his reply has stated that "business of fruits of respondents failed and now they have started steel work and have stored steel material". There is no denial in the reply that the premises were not rented out to be used only as a banana store. The plea, on the other hand, is that since the fruit business failed, therefore, the tenant switched on to the manufacturing of steel trunks etc. The tenant Shiv Ram appeared as RW 1. In his cross-examination he admitted that he had been carrying on the fruit business In the premises and later on he has switched on to the business of manufacturing of trunks and sales thereof in the same premises and the change was done by him without obtaining any oral or written consent of the la