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Mohan Dass And Anothers v. D.J. & Others - WRIT - A No. 6035 of 1986 [2005] RD-AH 447 (18 February 2005)


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                 W.P. No. 6035 of 1986.

Mohan Das & another                                         Petitioners


 District Judge, Lalitpur & others.                      Respondents.



Hon. Vikram Nath,J.

This writ petition has been filed by the tenant against the judgment and order dated 18.03.1986, passed by the District Judge, Lalitpur in Civil Revision No. 11 of 1982, whereby the revision of the landlord under Section 25 of the Provincial Small Causes Court Act, 1887 was allowed and the suit of the respondent landlord for ejectment was decreed with costs.

The dispute relates to shop No. 62-A, Civil Lines Station, Lalitpur of which the petitioner was the tenant and respondent No. 2 is the landlord. The landlord filed a suit for ejectment of the petitioner on 3 grounds, namely, default in payment of rent, material alteration in the building causing substantial damage and inconsistent user of the purpose for which it was let out. The petitioners contested the suit. They deposited entire rent due along with interest and other taxes before the first date of hearing. The petitioner further denied having made any material alteration and also the plea of inconsistent user of the premises in dispute. After the parties adduced their evidence the Judge, Small Causes Court vide judgment dated 23.11.1981 dismissed the suit of the respondent No. 2 landlord holding that firstly, the petitioners were entitled to benefit of Section 20 (4) of the Act, secondly, there was no material alteration made by the tenant and thirdly, there was no inconsistent user. The landlord filed revision under Section 25 of the 1887 Act, which was registered as Revision No. 11 of 1982 in the Court of District Judge, Lalitpur. The District Judge, Lalitpur vide judgment dated 18.03.1986 confirmed the findings regarding benefit of Section 20(4) of the Act and also that there was no material alteration. However the revisional Court held that there was inconsistent user and accordingly allowed the revision and decreed the suit for ejectment of the petitioner. Aggrieved by the same, the tenant filed the present writ petition.

I have heard Ms. Puja Agarwal, Advocate, holding brief of Sri Shashi Nandan, learned counsel for the petitioner and Sri H. N. Sharma, learned counsel for the respondent.

The only question for consideration in this petition is that as to whether the change in the user by the tenant as alleged by the landlord would amount to inconsistent user under Section 20(2)(d) of the 1972 Act. It is alleged by the landlord that the premises in dispute was let out vide rent note dated 03.10.1970. Apart from the contentions regarding rent etc clause No. 2 of the rent note specifically provided that the premises in dispute will be used only for running a vegetarian restaurant. The same   is quoted here under:-

"2-";g fdge mijksDr nqdku dsoy 'kkdkgkjh tyiku xzg ds fy, ys jgs gSa- "

This condition contained in the rent note was an under taking given by the tenant. The rent note has been filed as Annexure C- A 1 to the counter affidavit of Sri Mahendra Prakash Parasar, son of Shyam Behari Parasar, respondent No. 2. The execution of the rent note is not disputed. Further the use of the shop in dispute for running a non-vegetarian restaurant is also not disputed.

The contention of the petitioner is that the shop was let out for running a restaurant for which it is still being used. The petitioner has not changed the user. It is still being used for running a restaurant. Merely by providing non-vegetarian food in the restaurant will not change its user nor would it amount to inconsistent user.  In support of his contention learned counsel for the petitioner has relied upon the following decision to contend that the change from vegetarian to non-vegetarian restaurant would not amount to inconsistent user.

1.2002(1) ACJ 337 (SC), Siddalingamma & another vs. Mamtha Shenoy.

2.1988 (2) SCC 474, Mohan Lal vs. Jai Bhagwan.

3.1989 (3) SCC 441, Gurdial Batra vs. Raj Kumar Jain.

4.1995 (2) ARC 359, Vinay Kumar & others vs. District Judge, Ghazipur & others.

5.1999 (3) A L R 784, Virendra Kumar Agrawal vs. District Judge, Mirzapur & others.  

I have considered the submissions and also the judgments relied upon by the learned counsel for the petitioner. All the cases cited are distinguishable and do not apply to the present case as discussed later in the judgment. In the present case a contract had been entered in writing and it contained certain conditions to be adhered to. It also contained a clause that in the event of violation of any of the condition the defaulting parties would be liable to suffer. In my opinion, the tenant petitioner cannot wriggle out of his contract of running vegetarian restaurant in the premises in dispute.

The choice/ option for letting out the premises for running a vegetarian or non-vegetarian restaurant may depend upon the religion, culture, social background, sentiments, emotions and feelings of the landlord. Since the property belongs to the landlord he has right to impose conditions, which may suit him. It would be unjust to use some one's property contrary to his wishes and desires affecting his personal, social and religions belief and faith. There may be situations where a person may be allergic to non- vegetarian food and its smell. It could be quite possible that the landlord in the present case may not have let out the premises at all If he had known that the tenant would use it for running non-vegetarian restaurant. The confinement to running a vegetarian restaurant is quite clear from the language used in the rent deed. Had it been let out for the purposes of running a restaurant without a stipulation of vegetarian and non- vegetarian, it would have been a different situation. The inclusion of the specific nature of restaurant being vegetarian clearly indicates that the landlord had prohibited the service of non-vegetarian food in the restaurant.

A perusal of the clause 2 of the rent deed directly debarred the tenant from using it as a non-vegetarian restaurant. The condition is to run " only vegetarian" restaurant. The qualification of the "vegetarian restaurant" by "only" excludes any item other than vegetarian.

In the case relied upon by the petitioner the use is only commercial which may not affect the landlords religion, culture, sentiments, emotions or feelings. In the case of Mohan Lal vs. Jai Bhagwan (supra) the change was from liquor shop  to general merchandise. Similarily in the case of Gurdial Batra vs. Raj Kumar Jain (supre) the initial letting was for cycle and rickshaw repair, subsequently the tenant started using it for selling Television sets. Again in the case of Mehta General and Provision Stores and others vs. Smt. Prem Wati (spura)  the letting was for general provision stores and subsequently changed to textile shop. In the case of Virendra Kumar Agrawal vs. District Judge, Mirzapur (supra) the building in question was being used for operating stitching machine, rolling machine etc.; subsequent use for printing machine was not held to be change in user.

In all the above cases the alleged change in use did not affect the religion, culture, feeling, emotions and sentiments of the landlord. These cases are of no help to the petitioner. The other case relied upon by the petitioner of Siddalingamma and another vs. Mamta Shenoy (supra) provides that rent law generally lean in favour of tenants. There is no issue in that regard. In the present case, where the tenant having accepted a specific condition of not running a non-vegetarian restaurant, violated the condition contrary to the feelings of the landlord. No advantage can be given to the petitioner-tenant.  The tenant having accepted such a condition has to adhere and strictly follow the same. The petitioner by changing the vegetarian restaurant to a non-vegetarian restaurant was guilty of violating the term and condition of the rent note. It amounted to inconsistent user as per clause 20(2) (d) of the Act and the petitioner would, therefore, be liable to eviction.

There is no infirmity in the judgment of the revisional Court, which is solely based upon admitted condition in the rent deed and the running of non-vegetarian restaurant.

Accordingly, the writ petition is dismissed.  

Dated: 18.02.2005

v.k.updh. (v-42)


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