A tenant's use of a portion of the demised premises for residential purposes does not amount to a change of user if the dominant purpose remains the same.

1. The tenant-petitioner has filed this revision petition against the order of the Appellate Authority, Patiala, dated March 18, 1980, whereby the order of the Rent Controller, dated Feb. 15, 1979, directing his ejectment was maintained.

2. The landlord-respondent sought the ejectment of the petitioner from the demised premises inter alia on the ground of change of user as contemplated under S.13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter called the Act), which provides that if the tenant has used the building or the rented land for a purpose other than for which it was leased, he is liable to be ejected. It was averred in para 4 of the ejectment application that the tenant had changed the user of the shop, in dispute, without the written consent of the landlord and as such, he was liable to be evicted therefrom, and that he had started residing there along with his family in addition to his bakery business. The rent-note, dt. March 6, 1958, executed for eleven months, stipulating a monthly rent of Rs. 30/-, is, Exhibit A.1. In the written statement it was stated that the tenant had not changed the user of the demised premises, he had taken the premises for use and occupation as his shop of bakery and also for his use and residence in part thereof, a part of it is used by him as residence ever since he took the rented premises on rent, the right of residence was not prohibited by the terms of the lease, his living in the part of the rented premises was essential part of his business, he was an old man of 70 years infirm and of weak eye-sight, his wife helped him in the business of the bakery, he cannot carry on his trade and business without living in the demised premises and that he guards the premises, in dispute, by living there. It was also pleaded that he had been living in the demised premises for more than 19 years and during this period, the landlord had the knowledge of the same as he accepted the rent, never protested against such user, had always acquiesced in the user of the demised premises, and as such, he was estopped from taking this plea. In the replication filed on behalf of the landlord, it was stated that it was wrong that the shop, in question, was taken on rent by the tenant for residential purposes along with the business of bakery. The living of the tenant in a part of the rented premises was not an essential part of his business. It was wrong that his residence in the demised premises was required for guarding the building. It was also wrong that he had been living in the premises for the last 19 years and that it was also wrong that the landlord had acquiesced in the use of the premises, in dispute, for the residence of the petitioner. On the pleadings of the parties the learned Rent Controller framed the following issues :

1. Whether the respondent has changed the user of the demised premises? If so, to what effect?

2. Whether the respondent is liable for ejectment?

3. Relief.

On issue No.1, it was found that the petitioner had changed the user of the demised premises. According to the Rent Controller, they were rented out for running a shop whereas on the admission of the tenant himself, he was also residing therein with his family. As a result, the order of ejectment was passed against the tenant. In appeal, this finding of the Rent Controller was maintained by the Appellate Authority. Feeling aggrieved against the same, the tenant has come up in revision to this Court.

3 The learned counsel for the petitioner, contended that no specific purpose was provided in the rent-note, Exhibit A.1, nor was there any mention of any particular business to be carried on by the petitioner. The only recital therein is that the shop, in dispute, had been rented out to the petitioner at the rate of Rs. 30/- per month. According to the learned counsel, from the evidence on the record, it has been amply proved that the tenant was residing therein from the very beginning as it w