The main legal point established in the judgment is that change of user without the landlord's permission may attract liability for eviction in commercial tenancies, but the modern concept of trade and business should be considered. Additionally, evidence regarding the purpose for which the premises were let out is necessary to determine change of user.

Vinod K.Sharma, J.

1. CM No. 758-CII of 2009

For the reasons stated in the application, C.M. is allowed, order dated 4.12.2008 is recalled and the revision petition is restored to its original number.

CR No. 1148 of 1992

The landlord-petitioner by way of this revision has challenged the order passed by the learned appellate authority, vide which the petition filed by the landlord under Section 13 of the Haryana (Control of Rent and Eviction) Act for Eviction, has been ordered to be dismissed, by accepting the appeal filed by tenant.

2. The petitioner brought a petition for eviction of the respondent-tenant on the ground of non-payment of rent, change of user and that the tenant was causing nuisance. The plea of personal necessity was also raised.

3. Before the learned Rent Controller, the rent demanded was paid with interest and costs, therefore, the ground of non-payment of rent was dropped. The petitioner did not lead any evidence on the ground of personal necessity nor any evidence was led to prove nuisance. The only ground pressed for eviction, therefore, was "change of user".

4. Besides examining himself, the petitioner also examined two witnesses in support of the plea, that the premises in dispute was rented out to the respondent for karyana shop, whereas the respondent converted its use to a tea vending shop, by installing bhatti. He also led evidence to prove, that because of change of user, value and utility of the building had diminished, as the roof of shop had blackened, and the wall also developed cracks.

5. It may be, however, noticed, that the ground of eviction on ground of impairment of value and utility of the building was not pressed.

6. The learned Rent Controller allowed the petition primarily on the ground, that the stand taken by the petitioner was supported by two independent witnesses, whereas the respondent-tenant did not lead any independent evidence, except that he appeared as his own witness.

7. The learned lower appellate Court reversed the finding by recording as under :-

"Assuming for the sake of arguments that there was a shift in the business from Kariyana to selling tea; the query would be as to whether it could provide him a permissible ground of ejectment ? In the matter of Gurdial Batra v. Raj Kumar Jain, 1989(2) Rent Control Reporter 233, the Apex Court was seized of a similar proposition. In their wisdom their Lordships were pleaded to approve a broad categorisation of residential and commercial tenancies to hold that change of user from one category to other, without the prior permission of the landlord, would attract the liability to ejectment but otherwise keeping in view the modern concept of trade and business, it would be defying the logical aspiration of a progressive society if a tenant were restrained from shifting from one commercial venture to the other. Of course, the shift could not be stretched or permitted to the extent of causing any damage to the property or prejudice to the landlord or from retail business to the manufacturing process and vice versa. Similar view was taken by the learned Judges in the earlier matter of Mohan Lal v. Jai Bhagwan, AIR 1988 Supreme Court 1034 and for the obvious reason our own Honble High Court followed the same principle in the matter of Kamal Kumar v. Dev Raj, 1990(2) RCR 551.

From the statement of Mahender P.W.2 it appears that the "Bhatti" used by the tenant for the preparation of tea etc. was affixed outside the shop premises. So, I fail to understand as to how such a small affixture, necessary for running the business of tea stall, could damage the demised premises. After all it was neither a furnace nor cauldron of the type which could have any irredeemable impact on the building."

8. The learned counsel for the petitioner vehemently contends, that the order passed by the learned appellate authority cannot be sustained, in as much as the evidence led by the petitioner, proved the fact, that the shop was rented out for karyan