Kanshi Nath Ram Nath Dharmarth ... vs Subhash Chand Gupta
2008 Latest Caselaw 1984 Del

Citation : 2008 Latest Caselaw 1984 Del
Judgement Date : 10 November, 2008

Delhi High Court

Kanshi Nath Ram Nath Dharmarth ... vs Subhash Chand Gupta on 10 November, 2008

Author: Pradeep Nandrajog

R-100
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      RFA No.862/1987

                         Date of decision: 10th November, 2008

%      KANSHI NATH RAM NATH
       DHARMARTH TRUST                   ..... Appellant
                     Through : Mr. P.K. Aggarwal, Adv.

                  versus

       SUBHASH CHAND GUPTA               ..... Respondent
                        Through : Mr. P.D. Gupta, Adv.

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE J.R. Midha

1.       Whether Reporters of Local papers may
         be allowed to see the Judgment?

2.       To be referred to the Reporter or not?

3.       Whether the judgment should be
         reported in the Digest?

Pradeep Nandrajog, J. (Oral)

1. Heard learned counsel for the parties.

2. Undisputable, vide rent note dated 17.07.1981,

Ex.PW1/2, the appellant let out the suit property, i.e. a shop

for a period of 11 months recording therein that the

respondent would use the tenanted premises for carrying on

jewellery business.

3. The exact words in the lease agreement, Ex.PW1/2, are :

„Baraya karobar jewelers kiraye per le hai'

4. Alleging that the tenant switched over the use of the

tenant premises from that of jewellery business to sale of

food stuff, and in particular potato cutlets, suit was filed by

the appellant seeking a decree of injunction to restrain the

respondent from using the shop for a purpose other than for

which the shop was let.

5. Finding returned by the Learned Trial Judge is that

letting being for a commercial purpose, it hardly matters as to

what was sold from the shop and hence the prayer in the suit

has been declined.

6. What has weighed with the Learned Trial Judge is the

following:-

a) There is no covenant in the lease agreement prohibiting

the tenant to use the shop for a purpose other than for which

it was let.

b) That the letting was for a commercial purpose and hence

the shop could be used for any commercial purpose.

c) There is no proof of annoyance or inconvenience resulting

by the change in the use of the shop.

7. Section 108(O) of the Transfer of Property Act reads as

under: -

"The lessee may use the property and its product (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased, or fell or sell timber, pull down or damage buildings belonging to the lessor, or work mines or quarries not open when the lease was granted, or commit any other act which is destructive or permanently injurious thereto."

8. In the decision reported as AIR 1980 PHH 229 Des Raj

vs. Shyam Lal a full bench of the Punjab & Haryana High

Court held that where the carrying on of a particular business

is specified in the lease agreement the premises can be used

for said business purpose and no other.

9. Learned counsel for the respondent urges that the

Hon‟ble Supreme Court in the decision reported as AIR 1988

SC 1034 Mohal Lal Vs. Jai Bhagwan held that change of use of

a shop from one commercial purpose to another does not

amount to use of a premises for a purpose other than for

which it was leased. Counsel urges that in this view of the

matter the view taken by the Learned Trial Judge is

unexceptionable.

10. Counsel further urges that even otherwise in view of

Section 41 (h) of the specific relief act, the suit required to be

dismissed in as much as under Section 14 (c) of the Delhi

Rent Control Act 1958, the landlord can seek eviction of a

tenant who uses the tenanted premises for a purpose other

than that for which the same was let.

11. We are afraid, neither submission made by learned

counsel for the respondent has impressed us. The language

of clause (o) of Section 108 of the Transfer of Property Act is

clear in its mandate. It enjoys upon a tenant to use the

property let out for a purpose for which the same was let out.

Meaning thereby no tenant can use the premises for a

purpose other than that for which the same was let out.

12. The decision of the Hon‟ble Supreme Court in Mohan

Lal's case is clearly inapplicable. In said case the subject

premise was let out for running the business of liquor vend

but was used for the business of general merchandise.

13. With reference to the concept of allied and cognate

business and expanding concept of departmental stores, it

was held as under:-

"While respectfully agreeing with the said observations of Lord Diplock, that the Parliament legislates to remedy and the judiciary interpret them. It has to be borne in mind that the meaning of the expression must be found in the felt necessities of time. In the background of the purpose of rent legislation and inasmuch as in the instant case the change of the user would not cause any mischief or detriment or

impairment of the shop in question and in one sense could be called an allied business in the expanding concept of departmental stores, in our opinion, in this case there was no change of user which attracts the mischief of S.13(2)(ii)(b) of the Act. The High Court, therefore, was in error."

14. On the issue of injunction to be denied on account of

availability of efficacious relief, suffice would it be to state

that the relief pertaining to ejectment of tenant is entirely

different than a relief to require the tenant to conform to the

terms of the lease deed.

15. At this stage, we may note an allied contention urged by

learned counsel for the respondent. Counsel urges that the

lease was for 11 months and the contract between the parties

came to an end after 11 months and thereafter his client is

entitle to use the premises for any purpose. This argument

has to be noted and rejected for the reason the

commencement of every lease is a contract. Parties are