Bhawani Singh, J.
1. This revision petition by the Himachal Pradesh Transport Corporation (hereafter 'petitioner') assails the judgment of District Judge (Appellate Authority), Shimla in Case No. C.M.A. 174-S/14 of 1981, decided on 15-7-1982, whereby the order of eviction passed by Rent Controller, Shimla in Case No. 32-2/79 dated 4-8-1981 has been confirmed.
2. The respondent instituted eviction application under Section 14(2) of the Himachal Pradesh Urban Rent Control Act, 1971 (hereafter shortly 'Rent Control Act') for the eviction of the petitioner from building 'Wynstay', Lower Lakkar Bazar, Shimla. The ground of eviction has been specifically stated in para 16(a) as follows :--
'The tenant has used the building after the commencement of the H.P.U.R.C. Act, 1971 without the written consent of the landlord for a purpose other than that for which it was leased i.e., whereas the building was hired out for the purpose of using it as an office for the transport department, the said building was firstly handed over to the office of the Divisional Commissioner, H.R.T.C. North Zone and the G.M. shifted his office to Khilini who was previously using the entire building i.e., both the floors for his office as was agreed upon but when the Divisional Commissioner aforesaid occupied the building, whereas he used the 1st floor for the office, the ground floor of the said premises was converted into his residence and he along with his family occupied the same as residence thus converting the user of the said building and thus using it for a purpose other than that for which it was leased. The petitioner served a notice on the respondent whereupon the respondent made the Divisional Commissioner vacate the said building and again shifted his own office from Khilini into the said building.'
3. In its reply to para 16(a), the petitioner denied the allegations and it has been stated that the premises had been used for housing its head office. For some time during the past, the head office was shifted to some other building and these premises were occupied by the Divisional Manager of the petitioner for his office. The premises had always been used for the purpose for which they were let out. In rejoinder to the reply of the petitioner, it has been asserted that the portions of the building were used for residence of the Divisional Commissioner and some of his staff, therefore, for a purpose other than that for which it was originally lei out.
4. On the pleadings of the parties, the Rent Controller framed the following issues :--
'(1) Whether the premises in dispute have been used for a purpose other than for which the same were let out without the consent of the landlord? If so, its effect? OPA.
(2) Relief.'
5. During the trial before the Rent Controller, the respondent produced only two witnesses, namely, Shri Jugal Kishore (PW 1) and Shri Surjit Singh (P.W. 2), while the petitioner produced Shri Harish Chander Aggarwal (RW 1), a Section Officer in petitioner's office. The Rent Controller found that the entire ground floor of the premises was used for residential purpose, therefore, it could be safely concluded that a substantial portion of the premises was used for a purpose different from the one for which the same had been let out and as such the petitioner had rendered itself liable for ejectment under Section 14(2)(ii)(b) of the Rent Control Act. It has also been held that there is no evidence to show that the consent of the landlord was obtained before the portion of the demised premises was converted into residence.
6. The Rent Controller rejected the plea of the petitioner that the premises were allotted to the Divisional Manager for the reason that he was to attend to his work during all twenty-four hours during emergency, on the ground that neither the nature of urgent and special duties were narrated nor this kind of plea was taken in the reply where the case was only that the premises were being used for housing the head office of the petitioner. The Appellate Authority, substantially confirmed these findings, hence this revision before this Court.
7. The matter appeared before the learned Chief Justice on 21-9-1990 where it was stated by the petitioner's counsel that the use of 'non-residential building1 partly for the purpose of business or trade and partly for residence, under the amended definition, does not alter the nature of the building from 'non-residential building' to 'residential building', while respondent contended that the question relevant for consideration is not whether there is any change in the nature of the building, but whether there is any change in the use for the purpose for which the building was let out.
8. Accordingto the learned Chief Justice, these questions are likely to arise in many cases in future, therefore, this petition has been directed to be decided by a Division Bench.
9. In order to examine this matter, it is necessary to note the provisions of Section 2(d) and Section 14(2)(ii)(b) of the Rent Control Acts from time to time. Before Rent Control Act, 1971 was applicable to Shimla Urban Area, the East Punjab Urban Rent Restriction Act, 1949, as amended from time to time, was in force. Under Section 2(d), non-residential building has been defined as under :
'Non-residential building' means a building being used solely for the purpose of business or trade:
Provided that residence in a building only for the purpose of guarding it shall not be deemed to convert a 'non-residential building' to a 'residential building';'
Exactly, similar was the definition of non-residential building under the East Punjab Urban Rent Restriction Act, 1949. This definition was amended by the Himachal Pradesh Urban Rent Control (Amendment) Act, 1978 (Act No. 23 of 1978) and the definition of non-residential building has been substituted in the following terms :
'2(d) 'non-residential building' means a building being used,--
(i) mainly for the purpose of business or trade; or
(ii) partly for the purpose of business or trade and partly for the purpose of residence, subject to the condition that the person who carries on business or trade in the building resides there:
Provided that if a building is let out for residential and non-residential purpose separately to more than one person, the portion thereof let out for the purpose of residence shall not be treated as a non-residential building. Explanation. -- Where a building is. used mainly for the purpose of business or trade, it shall be deemed to be a non-residential building even though a small portion thereof is used for the purpose of residence.'
10. The necessity for this amendment has been spelt out in the STATEMENT OF OBJECTS AND REASONS with the Bill and the same is being quoted in extenso :
'As per existing definition of non-residential buildings given in the Himachal Pradesh Urban Rent Control Act, 1971, the landlords are getting the building vacated, which are being used partly for residence and partly for business, as the definition of non-residential building clearly says that it means a building being used solely for the purpose of business or trade. In our towns buildings are mostly shop-cum-flats so under the garb of this clause, tenants are facing eviction. It is, therefore, proposed that the Himachal Pradesh Urban Rent Control Act, 1971, be amended to include suitable provision by replacing the existing definition/ provision, so that the eviction, on the score that the building is being used partly for residence and partly for business cannot be effected. In view of the fact that a good number of petitions for the eviction of tenants from such commercial premises are pending before the Courts, as such it has also been decided to make the provision in the said Act, so that the pending matters could also be disposed of in accordance with the amended provisions.
This Bill seeks to achieve the aforesaid objects.
The SIMLA: 1978
DAULAT RAM CHAUHAN,
Minister-in-charge.'
11. This Act was further -amended by Rent Control Act, 1987 and by virtue of Sub-clause (3) of Section 1, it was made applicable from 17th day of November, 1971. However, there is no change in the definition of non-residential building under Section 2(e) thereof.
12. The other provision relevant in this case is the ground of eviction under Section 14(2)(ii)(b) which reads as under:
'14(1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section.
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf, if the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant is satisfied.
(i) .....
(ii) that the tenant has after the commencement of this Act without the written consent of the landlord--
(a) .....
(b) used the building or rented land for a purpose other than that for which it was leased, or ..... the Controller may make order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied, he shall make an order rejecting the application.'
13. Before proceeding further to examine the key question in controversy between the parties, the contention of Shri D. K. Khanna that the present eviction application is not maintainable for the reason that by the time it was filed, the premises had been put to the same use for which it had been rented, may be examined. Although there is no written lease-agreement between the parties since it has not been placed on the record by any of them, however, it appears from their pleadings, evidence and admissions that the building was taken on lease in 1957 by the Himachal Pradesh Government Transport Department and was used as an office. Thereafter in the year 1974, the assets and liabilities of the Government Transport Department were taken over by the Himachal Pradesh Road Transport Corporation (petitioner) which continued to use the premises for office, of General Manager. After some time, this office was shifted to some building in Khalini during Emergency (1975) and the office of Divisional Manager moved into this building. This Officer occupied some part of the building for his residence. The respondent served a notice for eviction and complained against the change of user. At this, the Divisional Manager vacated it and shifted to some other premises along with his office. On this change, the office of General Manager came back to this building before filing of petition on 12-1-1979. In these circumstances, Shri D. K. Khanna contends that in order to invite the eviction proceedings, it is necessary that the so-called violation should continue right up to the stage of filing of eviction application. There is no force in this submission; the statute does not permit this kind of situation. Further, if this contention is accepted, no eviction application can be successfully maintained by any landlord on this ground since the tenant would see that by the time the eviction application is filed, the alleged complaint of the landlord no longer existed. This question is not covered by the decisions of this Court, namely, ILR (1976) Him Pra 802 (Balak Ram v. B. N. Gupta) and ILR (1975) Him Pra 670 (Prem Chand v. Beni Madhav), on which reliance was placed by the petitioner's counsel, since they turn on their own facts. As a matter of fact, this point is covered by the decision of Gujarat High Court reported in 1970 Ren CJ 233 (Magan Lal Narandas Thakkar v. Arjan Bhanji Kanbi), of which para 16 is reproduced :
'16. In our opinion, the words 'has sub-let' occurring in Section 13(1)(a) of the Rent Control Act, do not include any element of the subtenancy being in existence at the date when the suit is filed. It is enough for the landlord to satisfy the Court that after the Act came into operation, the tenant did sublet the premises or a part thereof unlawfully and it is not necessary to further show that the subtenancy was subsisting at the date of the suit.'
14. This view was approved by the Supreme Court in AIR 1975 SC 2156 (Gajanan Dattatraya v. Sherbanu Hosang Patel). In para 17 of this judgment, the Court said that:
'17. The appellant repeated the same contentions which had been advanced before the High Court. The provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 indicate that a tenant is disentitled to any protection under the Act if he is within the mischief of the provisions of Section 13(1)(e), namely, that he has sublet. The language is that if the tenant has sublet, the protection ceases. To accede to the contention of the appellant would mean that a tenant would not be within the mischief of unlawful subletting if after the landlord gives a notice terminating the tenancy on the ground of unlawful subletting the sub-tenant vacates. The landlord will not be able to get any relief against the tenant in spite of unlawful subletting. In that way the tenant can foil the attempt of landlord to obtain possession of the premises on the ground of subletting every time by getting the sub-tenant to vacate the premises. The tenant's liability to eviction arises once the fact of unlawful subletting is proved. At the date of the notice, if it is proved that there was unlawful subletting, the tenant is liable to be evicted. The High Court rightly rejected the revision petition.'
15. This interpretation of words 'has sublet', by the Supreme Court, can very well be applied to give similar meaning to word 'used' in Clause (b) of Section 14(2)(ii) of the Rent Control Act. It is not necessarily the present use-- at the stage of filing of the eviction application-- but any past use as well, after the commencement of the Rent Control Act, which is enough to maintain the eviction application.
16. On the main question, Shri D. K. Khanna not only assailed the finding of the Courts below for want of evidence, but also submitted that the use of the building partly for the purpose of business or trade and partly for residence, does not alter the nature of non-residential building. There has to be total conversion, the learned counsel contended.
17. On the other hand, the contention of Shri L. C. Sood, was that the nature of the building may not have changed but the use of the ground floor of the building for residential purpose by the Divisional Manager would alter the nature of the use and that alone is the ground for eviction under Clause (b) of Section 14(2)(ii) of the Rent Control Act. There is also disagreement between the counsel as to whether Sub-clause (i) or (ii) of Section 2(e) of the Rent Control Act, 1987, which substitutes the definition of 'non-residential building' with effect from 17th November, 1971, applies in this case. We proceed to examine these submissions of the learned counsel for the parties and while doing so, some of the decisions, on which reliance was placed by them, are also being noticed.
18. In (1965) 67 Punj LR 58 (Inder Singh v. Kalu Ram), while interpreting Section 13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act, 1949, Faishaw, Chief Justice observed in para 3 of the judgment that:
'3. It is argued on behalf of the petitioner that even if there had been a partial conversion of user of the premises in the time of the previous landlord, the tenant was nevertheless liable to ejectment because it was neither alleged nor proved that the consent of the previous landlord had been obtained in writing. The relevant provisions of Section 13 of the East Punjab Urban Rent Restriction Act read--
'(2)(ii) that the tenant has after the commencement of this Act without the written consent of the landlord--
(a) *
(b) used the building or rented land for a purpose other than that for which it was leased. It has undoubtedly been held by the Court in cases of subletting covered by Section 13(2)(ii)(a) that on a change of landlords the tenant is liable to ejectment for subletting even if the subletting had taken place in the time of the landlord who instituted the ejectment proceedings unless there had been any consent in writing after the commencement of the Act.
3. The question which arises is therefore whether if a tenant takes a shop for purposes of his trade, and, while still carrying on his trade in part of the premises, uses part of them for residential purposes, he can be said to have 'used the building' for a purpose other than that for which it was leased, I am inclined to take the view that such a partial conversion is not covered by the provisions of the Act and I derived support for this view from the different way in which Clauses (a) and (b) of Section 13(2)(ii) have been phrased. Clause (a) reads 'transferred his right under the lease or sublet the entire building or rented land or any portion thereof, while the words 'or any portion thereof do not appear in Clause (b). Obviously the omission is deliberate, and in my opinion the ejectment was rightly refused on this ground.'
19. This decision was later disapproved by a Division Bench of the same Court in (1968) 70 Pun LR 973 (Smt. Naranjan Kaur v. Dr. Siri Ram) where the learned Judges were of the opinion that in order to maintain a building as 'non-residential building', it was necessary that: (a) it is solely used for the purpose of business of trade, and (b) if any part of it is to be used for residence, it can only be used for the purpose of guarding it otherwise it changes its character from 'non-residential building' to a residential building. This is obvious in view of the definition of 'non-residential building'in Section 2(d) of the Act which was not for consideration in Inder Singh's case (1965 (67) Pun LR 58).
20. In (1970) 2 SCC 290 (M. K. Palani-appa Chettiar v. A. Pennuswami Pillai), a portion of the snap was used for cooking, but the Court held that this extent of use could not amount to conversion against the terms of the lease and the statutory provisions.
21. Similarly, in 1973 Ren CR 425 (Punj & Har) (Ram Niwas v. Union of India), the allegation was that the Post Master was living along with his family in one room of the office building. The tenant's case was that the duties of the Post Master were such that he had to be available for duty all the twenty-four hours to attend to multifarious nature of functions including attending to incoming and outgoing communications. This defence prevailed and the claim of the landlord was rejected.
22. In AIR 1982 Punj and Har 31 (Amin Chand v. Gian Chand), the landlord's complaint was that the tenant was using the premises, let out for carrying out the business of selling firewood, for teathering his buffalo also. However, the Court found that even if the tenant was teathering the buffalo, there was no evidence that he had left the original, purpose of lease and had started using rented land for a purpose other than that far which it was leased. In coming to this conclusion, the learned Judge placed reliance on the following observations in Himalayan Traders' case (1966) 68 Pun LR 367:
'If it were the intention of the legislature that where a small part of the demised premises is not used for the purpose for which it had been let and that was to be ground of ejectment, it would have used the same phraseology as in Section 13(2)(ii)(a) of the East Punjab Urban Rent Restriction Act and then it would have used in Section 13(2)(ii)(b) also the words 'any portion thereof'. This it has not done. What it has done is that it has said that when the building is used for a purpose other than that for which it was leased and, therefore, unless the part so used can itself be described as building, the building to which this part of the clause refers must be taken as a whole. So that user of one room in a building taken on rent for residential purpose, as the godown, does not come under Section 13(2)(ii)(b) of the Act.'
23. The same view was taken by the learned Judge in another later decision by him reported in AIR 1982 Punj and Har 224 (Dharam Chand v. Mathura Dass), where a small portion of the shop, let out for bakery business, was used for residential purpose because the dominant purpose of the demised premises would still be the bakery business.
24. In (1988) 2 SCC 474 : (AIR 1988 SC 1034) (Mohan Lal v. Jai Bhagwan), Section 13(2)(ii)(b) of the Punjab Act was in picture which is similar to Section 14(2)(ii)(b) of the Rent Control Act, 1987. The premises were let out for running business of English liquor vend, but the tenant subsequently changed over to the business of general merchandise. His case was that the purpose of user still remained commercial and that in the rent-note there was no clause prohibiting him to change to any other business in the shop in dispute. Since he failed to get the liquor business, he had to change the business in question. The plea failed not only with the Rent Controller, but also with the Appellate Authority. Placing reliance on Full Bench decision in (1984) 86 Pun LR 1 : (AIR 1984 Punj & Har 133) (Sikander Lal v. Amrit Lal), where the Court was of the opinion that in case the changed business could be considered to be ancillary or allied to the main business, there could be no change of user, the High Court rejected the landlord's claim.
25. The Apex Court although doubted the correctness of decision in Sikander Lal's case, yet dismissed the landlord's appeal and approved the following observations in (1980) I All ER 529,541 (Duport Steels Ltd. v. Sirs) :
'My Lords, at a time when more and more cases involving the application of legislation which gives effect to policies that are the subject of bitter public and parliamentary controversy, it cannot be too strongly emphasised that the British Constitution, though largely unwritten, is firmly based on the separation of powers : Parliament makes the laws, the judiciary interpret them. When Parliament legislates to remedy what the majority of its members at the time perceive to be a defect or a lacuna in the existing law (whether it be the written law enacted by existing statutes or the unwritten common law as it has been expounded by the judges in decided cases), the role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was, and to giving effect to it. Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral. In controversial matters such as are involved in industrial relations there is room for differences of opinion as to what is expedient, what is just and what is morally justifiable. Under our Constitution it is Parliament's opinion on these matters that is paramount.'
26. In Civil Appeal No. 1086 of 1964, decided on November 10, 1965* (Maharaj Kishan Kesar v. Milkha Singh), the facts found were that the tenant was selling petrol as an allied business of the workshop. It was held that there was no evidence to show that in the trade, a petrol pump is not regarded as a part of motor workshop business. The sale of petrol is an allied business and would not amount to conversion to a different business or change of user.
27. In (1989) 2 Scale 17 : (AIR 1989 SC 1841)(GurdialBatrav. Raj Kumar Jain), the Supreme Court had under consideration Section 13(2)(ii)(b) similar to Section 14(2)(ii)(b) of the Rent Control Act, 1987. The premises in question were intended to be used for running a cycle and rickshaw repairing shop. As per the allegation of the landlord, the tenant had put the premises to different use, namely, selling televisions. The tenant admitted that he had been selling televisions in the premises, besides, carrying on the repairing of cycle and rickshaw, but he did so for a period of about seven months and stopped the same thereafter as it was not viable. According to the Rent Controller, it constituted user for purpose other than that for which the premises was leased and the Appellate Court also declined to interfere after placing reliance on the Full Bench decision in AIR 1980 Punj & Har 229 (Des Raj v. Sham Lal), where the tenant had started using the shop as a godown; the Supreme Court allowed the tenant's appeal after referring to various other decisions on the subject as well as the Lord Diplock's observations, already referred to above. It is most essential to quote para 6 of this judgment, since the Court has further broadened the scope of Section 13(2)(ii)(b) of the Rent Control Act by enunciating concept of 'injury to the premises' to examine the complaint of a landlord on the basis of change of user, though, this forms a separate ground for eviction under the Rent Control Act:
'6. Letting of a premises can broadly be for residential or commercial purpose. The restriction which is statutorily provided in Section 13(2)(ii)(b) of the Act is obviously one to protect the interest of the landlord and is intended to restrict the use of the landlord's premises taken by the tenant under lease. It is akin to the provision contained in Section 108(b) of the Transfer of Property Act dealing with the obligations of a lessee. That clause provides : The lessee may use the property and its products, if any, as a person of ordinary prudence would use them if they were of 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.....'A house let for residentail purpose would not be available for being used as a shop even without structural alteration. The concept of inury to the premises which forms the foundation of Clause (o) is the main basis for providing Clause (b) in Section 13(2)(ii) of the Act as a ground for the tenant's eviction. The Privy Council in U Po Naing v. Burma Oil Co., AIR 1929 PC 108 adopted the same consideration. The Kerala High Court has held that premises let out for conducting trade in gold if also used for a wine store would not amount to an act destructive of or permanently injurious to the leased property, 1977 Ker LT 417. Similarly, the Bombay High Court has held that when the lease-deed provided for user of the premises for business of fret work and the lessee used the premises for business in plastic goods, change in the nature of business did npt bring about change of user as contemplated in Section 108(o) of the Transfer of Property Act, 1978 Mah LJ 545.'
28. In (1990) 1 Sim LC 187 : (AIR 1991 Him Pra 10) (Balbir Singh v. Chanchal Singh), the premises let out for shop, had been put to use as godown by the tenant. The evidence also established this claim of the landlord and the appeal of the tenant was thus rejected by this Court and later by the Supreme court of India.
29. Two decisions, namely, 1972 Ren CR 828 (Punj & Har) Harbans Lal v. Kalu Ram) and (1985) 1 Rent LR 680 (Punj & Har) (Union of India v. R. K. Bagga), on which reliance was placed by the respondent's counsel have primarily turned against the tenants for the reason that the Court laid complete emphasis on 'solely' in the definition of non-residential building and did not notice the other relevant judgments to the contrary.
30. We have extracted the definition of 'non-residential building' that existed before the Rent Control Act, 1978 and thereafter. Under the old definition, the emphasis was that such a building was to be used solely for the purpose of business or trade. However, by the proviso to the definition, residence in such a building only for the purpose of guarding it, was not to convert it into a residential building. Despite the fact that the definition of non-residential building remains unchanged under the Punjab Act, however, while interpreting Section 13(2)(ii)(b) of the Act, the Courts had been moving on the principle that minor, non-substantial change in user and ancillary or subsidiary nature of change in business would neither attract the provisions of Section 13(2)(ii)(b) of the Act nor convert a 'non-residential building' to a 'residential building'. The scope of this provision has further been broadened by the Apex Court in numerous decisions some of which have already been referred in the preceding part of this judgment and in Gurdial Batra's case (AIR 1989 SC 1841), Justice Ranga Nath Misra, as his Lordship then was, has gone to the extent of bringing in the concept of 'injury to the premises' as a result of alleged change of user of the premises in question, meaning thereby, an additional factor, though separately provided as separate ground of eviction could be used profitably to see whether the change caused to the premises is of such nature which would amount to an act of destruction or permanent injury to the leased property.
31. Coming now to Rent Control Act, 1971, we have the same definition of non-residential building as it existed in Punjab Act, but realising the obvious flaws therein, the legislature substituted it by the Rent Control Act, 1978. This definition continues under the Rent Control Act, 1987 which has been made applicable from 17th November, 1971. Reference to the Statements of Objects and Reasons, reproduced above, would clearly show that the pending cases were intended to be decided in accordance with the new definition. We proceed to examine the further contention of the learned counsel for the parties as to the application of either of the two parts of this definition to 'non-residential building'. Shri D. K. Khanna, submits that it is Section 2(d)(ii) which governs the present case, whereas Shri L. C. Sood, submits that although by the change in question the nature of building still remains 'non-residential building', however, the act of the tenant has come directly within the mischief of Section 14(2)(ii)(b) of the Rent Control Act. Alternatively the learned counsel submits that it is Section 2(d)(i) which applies in this case and while saying so, the learned counsel submits that 'mainly' should be interpreted as 'solely' which expression existed prior to 1978 amendment.
32. We have carefully examined these submissions of the learned counsel for the parties. We are of the considered opinion that it is Section 2(d)(ii) which is applicable in the present case. The premises in dispute were used partly for the purpose of business or trade and partly for the purpose of residence since as per the evidence, the Divisional Manager resided there for about two years. In addition, two more officials of the department, as per the solitary statement of Shri Surjit Singh (P.W. 2), Divisional Manager who appeared on behalf of the respondent resided there. Now, the question is whether 'mainly' should be interpreted as 'solely' as contended by Shri L. C. Sood. No such interpretation can be given for the reason that these two expressions have altogether different meanings. 'Solely' means 'exclusively' while 'mainly' means 'substantially', but not in any case 'wholly' or 'solely'. Therefore, the legislature has consciously and purposely substituted 'mainly' for 'solely'. This argument has thus no force' and is rejected. Going over to the explanation attached with this part, it has been explained that in case a building is mainly used for the purpose of business or trade, it shall be deemed to be non-residential building aeven though a small portion thereof is used for the purpose of residence. The words 'small portion' has to be read with reference to 'mainly' and then in the context of evidence that has been placed before the Court. The finding of the Courts below is that the ground floor, as a whole, has been converted into residence of the Divisional Manager, which means that substantial portion of the building has been put to use for purpose different from the one for which the same had been let out. We have examined this finding with reference to the evidence on record. We are of the considered opinion that this finding deserves to be set aside, since there is no evidence in support for such a conclusion rather the evidence clearly demonstrates that the premises which were put to use as a residence from small part of the whole building (See (1991) 1 SCC 422 : (AIR 1991 SC 744), Rai Chand Jain v. Miss. Chandra Kant Kholsa, at pages 430-431 (of SCC) : (at Pp. 749-750 of AIR). The first document on the record is the registered notice dated 20-8-73 (Ext. P. 2), issued by the respondent through his lawyer to the respondent (sic), but it has not been mentioned as to how which accommodation had been put to residential use by the Divisional Manager. Then, there is the eviction application wherein there is again complete absence of precise detail as to the extent of occupation. In the rejoinder it is asserted that portions of the building were used for residence of the Divisional Manager and some of his office staff and thus used for a purpose other than that for which it was originally let out.
33. In the statement of Juggal Kishore (P.W. 1), Special Power of Attorney of the respondent, the only statement is that the petitioner had changed user of the premises in question by letting out for residential use of its Divisional Manager Shri S. G. Ghai, who was residing in the ground floor of the premises in question. It is Surjit Singh (P.W. 2), who has appeared as a witness for the respondent, who has stated that in addition to him two other officials, namely, Tilak Raj and Devi Chand were occupying one room accommodation on the ground floor. The respondent has not asked a single question from Harish Chander Aggarwal (P.W. 1), as to the extent of accommodation in the occupation of the Divisional Manager, Shri S. S. Ghai, instead of asking about the accommodation with Tilak Raj and Devi Chand, question is directed towards one Mr. Upadhya. No map pointing out total accommodation of the building and the one allotted to the Divisional Manager and two others, has been placed on the record by the respondent-landlord. The respondent has failed to discharge the onus on him. The only evidence available is in the statement of Shri Surjit Singh (P.W. 2). He has stated that he had two bed rooms, one dining-cum-drawing room, a kitchen, a bath room and a latrine whereas Tilak Raj and Devi Chand had one room accommodation. He also says that there are 20-25 rooms in this two-storey building. He has also said that two rooms were being used as store. He has also stated that this allotment was made in his favour since he was not keeping good health and that during emergency he had to look after eight units under him, therefore, his service was needed for all the 24 hours.
34. From the statement of this witness, it is quite clear that all these three officials of the petitioner were occupying only 5 rooms for their residence and the other two rooms were not in their occupation. It can, therefore, be said that in a building of 20-25 rooms, only five rooms were used for residence. It is decidedly a small portion of the whole building. Moreover, these were the agents/employees of the petitioner and they could very well occupy the premises and their occupation does not change the 'non-residential building' into 'residential building' nor it can be held that the building had been used for a purpose other than for which it was leased since the dominant purpose of lease still continued and the casual use of the same by the employees of the respondent 'to a nominal extent cannot be held to be against the provisions of Section 14(2)(ii)(b) of the Rent Control Act. Even before the 1978 amendment, the Supreme Court had an occasion to examine this aspect of the matter in AIR 1978 SC 1601 (Sant Ram v. Rajinder Lal), where the tenant, a Harijan Cobbler, started living in rear part of the shop. After having failed hroughout, the matter was taken to the Supreme Court. Krishna Iyer, J. speaking for the Court, interpreted Section 13(2) (ii) (b) of the East Punjab Urban Rent Restriction Act, 1949 as applied to Himachal Pradesh, and gave practical and functional interpretation to the statutory provision in the context of the prevailing social and housing conditions and held that such a use by the tenant did not attract the provisions of Section 13(2)(ii)(b) of the Act. Court also noticed the substituted definition of 'non-residential building' by 1978 Act when in para 10 of the judgment, it said that:
'10. The irresistible inference, despite the ingenious argument to the contrary, is that the provision of Section 13(2)(ii) has not been attracted. We are comforted in the thought that our conclusion is a realistic one, as is apparent from a subsequent amendment to the definition of non-residential building which reads thus:
'(d) 'non-residential building' means a building being used,--
(i) mainly for the purpose of business or trade; or
(ii) partly for the purpose of business or trade and partly for the purpose of residence, subject to the condition that the person who carries on business or trade in the building resides there:
Provided that it a building is let out for residential and non-residential purpose separately to more than one person, the portion thereof let out for the purpose of residence shall not be treated as a non-residential building.
Explanation. -- Where a building is used mainly for the purpose of business or trade, it shall be deemed to be a non-residential building even though a small portion thereof is used for the purpose of residence.'
35. We have by now seen that even in the Punjab Act, the Courts have given liberal interpretation to the provisions of Section 13(2)(ii)(b) of the Rent Control Act even when the definition of 'non-residential building' contained 'solely' in its definition. This was the interpretation given by the Supreme Court in Sant Ram's case (AIR 197 SC 1601) (supra) also, since the existing provision on which this case is based, also contained similar provisions. After the 1978 amendment, the position has changed altogether. Definition of 'non-residential building' has been drastically amended. By the view we are taking, the definition clause can be harmonized with Section 14(2)(ii)(b) of the Rent Control Act.
36. The provisions of Law, as interpreted by us in the light of the statutaory scheme and the decision of various courts, particularly the recent judgment of the apex court make it clear that the mere fact that a non-substantial part of a residential building has been used by the tenant for a purpose other than the one for which it was let out to him, without impairing the building in any manner, would not render the tenant liable for ejectment under Section 14(2)(ii)(b) of the Act. Of course, each case will have to depend on its own facts. In the present case we have found that there was no deed of lease by which any specific user was either permitted or excluded. The use for a temporary period, in the circumstances of the present case, of a minor part of the building for residential purpose by the tenant would not enable the landlord to seek ejectment of the tenant.
37. In the result the impugned order of eviction passed in this case is set aside. The eviction application filed by the respondent is dismissed. The parties are, however, left to bear their own costs.