Holding

The change of user was not established; therefore, the eviction order under Section 13(2)(ii)(b) is invalid.

Summary

Atul Castings Ltd., the tenant, occupied a building leased for residential purposes and kept an office table and equipment in one room to dispose of office files, which the family also used for study. The landlord filed an eviction petition under Section 13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act, 1949, alleging a change of user to non‑residential use, though the non‑payment ground was not pressed. The Rent Controller, appellate authority and the High Court ordered eviction. The Supreme Court held that the lease contained no clause prohibiting such limited personal use, that the building remained residential, and that the landlord failed to plead and prove a change of user. Consequently, the eviction order was set aside.

Issues considered

Whether the use of a single room in a residential building for personal office work and study amounts to a 'change of user' under Section 13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act, 1949.
Whether the landlord discharged the burden of proving the change of user.

Legislation cited

East Punjab Urban Rent Restriction Act, 1949s. 13(2)(ii)(b), s. 2(d), s. 2(g), s. 2(h)
Indian Evidence Act, 1872
Transfer of Property Act, 1882s. 108

Subjects

evictionresidential leasechange of userEast Punjab Urban Rent Restriction Actburden of proofstatutory interpretationresidential buildingcommercial use

Judgment

A MIS. ATUL CASTINGS LTD.
v
BAWA GURVACHAN SINGH

APRIL 20, 2001

B [D.P. MOHAPATRA AND SHIVARAJ V. PATll.-, JJ.]

Rent and Eviction:

East Punjab Urban Rent Restriction Act , 1949-Section 2(d), 2(g),
C 2(h), 13(2) (ii) (b)-Eviction petition-Use of premises for purpose other
than residence-Tenant using a room in a residential building for disposal
of some files at home pertaining to his office and for the study of family
members-Held, by such use the building did not cease to be a residential
and the pwpose & character of the use of the building a!so did not change-
D Use of a Room in a residential building for personal purpose to be
distinguished ji-0111 use of such a room for business, industry or other
commercial activity or as .a regular public or professional office.

Evidence:

E Tenant stating in written statement that he has kept office table and
office equipment in one room where he brings office work for its disposal-
Held, it cannot be said that tenant admitted the case as to change of user
of the building-Rent Cohtroller and Appellate Authority expecting the
tenant to lead negative evidence to prove that part of the building was not
being used as office-Such approach opposed to settled principal of law in
F regard to discharge of burden ofproof-A1anifest _error committed in ordering
eviction in absence of evidence supporting the ground of change of user of
the building-Indian Evidence Act, 1872.

Interpretation of Statutes-Held, must be pwposive and not unduly
restrictive or narrow.
G
Respondent-landlord filed a petition for eviction of a11pellant-tcnant from
the premises under section 13(2)(ii)(b) of the East Punjab Urban Rent
Restriction Act, 1949 on the ground of non-payment of arrears of rent and.
using a part of the premises as office contrary to the 1mrpose stated in the
lease-agreement. However, during the pendency of the proceedings,
H IM
ATUL CASTINGS LTD. v. B.G. SINGH 125
res1>ondings-Iandlord did not .press the eviction 1>etition on ground of A
non-payment of arrears of rent. Rent Controller ordered eviction of
f
appellant-tenant which was confirmed by Appellate Authority in a1>peal and
subsequently by High court in revision. Hence the present appeal.

On behalf of the a1>1>ellant-tenant, it was contended that the order of
eviction l>assed against him was patently un~ustainable both on facts as well B
as in law; that merely because in one of the rooms, certain office tiles brought
home were disposed of and where·even the children and members of the
family used that room for study, did not change the character of the premises
from residential to non-residential; that the interpretation placed on Section
13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act, 1949 by the C
authorities and the high Court was too narrow and restricted, running
... contrary to the very object and pm1>ose of the provision.

Allowing the a1>peal, the Court

HELD : 1. There is no specific Clause in the lease agreement 1>rohibiting
the tenant use of even a room in the building for dis1>0sal of some files at D
home pertaining to his office and for the study of family members. The
respondent, has failed to establish the change of user of the building by
necessary pleading and evidence. So long as in a residential building, there
is no regular commercial activity 'r carrying on of business and regular
office with interaction of the p~blic and customers, etc. it is not possible to E
say that use of one room for doing home work per study itself will change
the user of the building and that t~e classification and character of the
building is changed. But it continues to remain residential building, so also
its purpose remains as residential. Use of a room in a residential building
for personal purpose should be distinguished from use of such a room for
business, industry or other commercial activity or as a regular public or F
1>rofessional office. (132-F; 133-A-B]

Gurdial Batra v. Raj Kumar Jain, (1989) 9 3 SCC 441, relied on.
I
Bishamber Dass Kohli (dead) by LRs. v. Satya Bhalla (Smt.), (1993) 1
SCC 566 and M Arul Jothi & v. Lajja Bal, (deceased) and Anr., (2000)3 G
sec 723, held inapplicable.
Dupport Steels Ltd. v. Sirs, (1080) 1 All ER 529, referred to.

2. The Rent Controller as well as the appellate authority expected the
appellant to lead negative evidence to prove that part of the building was not H
126 SUPREME COURT REPORTS [2001] 3 S.C.R.

A being used as office. ·This approach is opposed to settled princi1lle of law in
regard to discharge of burden of proof. The authorities have 11roceeded to
\
accept the case of the res110ndent mainly on the basis of so-called admission
said to have been made by the appellant in the written statement The appellant
merely stated that he has kept office table and office equipment in one room
where lie brings office work for its disposal. On this basis, it cannot be said
B that the appellant admitted the case of the respondent as to change of user of
the building. A manifest error has been committed in 11roceeding to order
eviction of the appellant in the absence of evidence supporting the ground of
change of user of the building: The findings in the absence of necessary
pleading and su11porting evidence cannot be sustained in law. (131-F-H]
c 3. The interpretation of provision must be purposive and not unduly
restrictive or narrow. If Section 13(2)(ii)(b) of the East Punjab Urban Rent
Restriction act is interpreted in a restricted and narrow manner, it will be
difficult for any tenancy occuJlying a residential building to protect himself
from arbitrary eviction and even to have freedom to use the building even for
D · residential purpose as he wants. Such interpretation will defeat the intent
and llUrpose of the Statute. [133-E]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2900 of
2001.' . . .
"
E From the Judgment and Order dated 5.12.2000 of the Punjab and Haryana
.
High Court in C:R. No. 5022 of 2000.
.,

· Dr. AM. Singhvi, R.K. Talwar and S.L. Aneja for the Appellant.

Gopal Subran1anium, Manoj Swamp, Hiren Dasan and Avinash Gautam
F for the Respondent.

The Judgment of the Court was delivered by

SHIVARAJ V. PATIL, J. Leave granted.

G The issue that_ has come up for consideration and decision in this
appeal is "whether use of one room to attend some office files at home in a
building leased for residential purpose, renders a tenant liable for his eviction
from the building under Section 13(2)(ii)(b) of the East Punjab Urban Rent
Restriction Act, 1949."

H This appeal is filed by the tenant who has suffered an order of eviction
ATUL CASTINGS LTD. v. B.G. SINGH [SHIVARAJ V. PATIL, J.] 127
under Section 13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act, 1949 A
.. (for short the 'Act'). The respondent herein, the landlord, filed a petition for
eviction of the appellant from the premises on the ground of non-payment of
arrears of rent and using the premises for the purpose other than residence
stating that the change of user had been effected without written consent of
the landlord. However, during the pendency of the proceedings, the landlord
did not press the eviction petition on the ground of non-payment of arrears 'B
of rent. The Rent Controller ordered eviction of the appellant from the premises
accepting that he was using a part of the premises as office contrary to the
purpose stated in the lease-agreement. The appellant filed the appeal before
the appellate authority challenging the order of the Rent Controller. The
appellate authority dismissed the appeal agreeing with the Rent Controller. C
The appellant approached the High Court by filing a revision petition
questioning the validity and correctness of the order of the appellate authority
confirming the order of eviction passed by the Rent Controller. The High
Court by impugned judgment and order upheld the order of eviction by
dismissing the revision. Hence the appellant has filed this appeal.
D
Dr. A.M. Singhvi, learned Senior Counsel appearing for the appellant,
urged that the order of eviction passed against the appellant is patently
unsustainable both on facts as well as in law; merely because in a six bed
room house, in one of the rooms, certain office files brought home were
disposed of; a table and a chair was put in the room for that purpose where E
even the children and members of the family used that room for study, did
not change the classification or character of the premises from residential to
non-residential; the interpretation placed on Section 13(2)(ii)(b) of the Act by
the authorities and the High Court was too narrow and restricted, running
contrary to the very object and purpose of the provision.
F
Shri Gopal Subramanium, learned Senior Counsel appearing for the
respondent, made submissions supporting the order of eviction passed against
the appellant. He contended that the concurrent findings of facts recorded by
all the courts below do not call for any interference at the hands of this Court
in exercise of jurisdiction under Article 136 of the Constitution. He emphasized G,
on the terms of the agreement in particular inviting our attention to the words
that the premises was to be used for the purpose of residence only; since one
room was used as office, Section 13(2)(ii)(b) was attracted for eviction of the
appellant.

We have considered these submissions of the learned counsel for the H
128 SUPREME COURT REPORTS [2001] 3 S.C.R.

A parties. It will be useful to notice a few provisions of the Act which will have
bearing in deciding the issue that has arisen for our consideration.

"Sectio!l 2. Definition - In this Act, unless there is anything repugnant '
in the subject or context :-

B (a) ····················

(b) ····················

(c) ····················
(d) "Non-residential building" means -
c (i) a building being used solely for the purpose of business or
....
trade;

(ii) a building let under a single tenancy for use for the purpose of
business or traqe and also for the purpose of residence.
-
D Explanation -For the purpose of this clause, residence in a building
only for the purpose of guarding it, shall not be deemed to convert
a "non-residential building" to a "residential b~ilding-in Chd."]

(e) ................ .

E (f) ................ .

(g) "residential building" means any building which is not a non-
residential building;

(h) "Scheduled building" means a residential building which is being
F used by a person engaged in one or more of the professions specified
in the Schedule I to this Act, partly for his business and partly for
his residence.

Section 13. Eviction of tenants -

G (1) ·····················
(2) A landlord who seeks to evict his tenant shall apply to the
Controller for a dire~tion in that behalf. If the Controller after
giving the tenant a reasonable opportunity of showing cause
against the application, is satisfied:

H (i) ................ .
ATUL CASTINGS LTD. v. B.G. SINGH [SHIVARAJ V. PATIL, J.] 129

(ii) That the tenant has after the commencement of this Act A
without the written consent of the landlord -

(a) transferred his right under the lease or sublet the entire
building or rented land or any portion thereof, or

(b) used the building or rented land for a purpose other than :S
that for which it was leased, or

(iii) that the tenant has committed such acts as are likely to impair
materially the value or utility of the building or rented land, or"

Since finding is recorded as to the change of user of the building on C
the so called admission of the appellant in the written statements, it is
necessary to notice the relevant pleadings. Para 6 of the original eviction
petition reads :-

"That the premises has been let out for residential purposes only.
That the respondent has started using the premises recently for D
purposes other than residence".

The reply to the said paragraph in the written statement is that:
...
"That the contents of para 6 are admitted that the premises was let
out for the purposes of residence but a part of the premises is being E
used for office purposes also as provided in the agreements. It is
denied that the respondent has started using the premises for purposes
other than residence. It is submitted that Sh. R. K. Aggarwal, the
Managing Director of the company is living in the demised premises
with his family from the inception of the tenancy and is still living F
there". (emphasis supplied)

Para 6 of the plaint was amended and after the amendment it reads:-

"That the premises has been let out for residential purposes only.
That the respondent has started using the premises recently for G
purposes other than residence. It is further submitted that change of
user has been effected by the respondent without any written consent
of the petitioner and after the commencement of the Act."

Amended written statement in relation to the same is to the following
effect:~ H
~~

130 SUPREME COURT REPORTS [2001] 3 S.C.R.

A "That the contents of para No. 6 are wrong and hence denied. The
respondent is not using any part of the building for the purpose of ~

the office and has never used it as such. As a matter offact, in one
~
room, the respondent has kept office table and office equipment
where he brings office work for its disposal. It cannot be termed as
an office because no client comes there to the respondent. During the
B time the M.D. of the respondent company is away to his factory or
office, the said office room is used as study room by his family
members. The entire demised premises has been used continuously
for the purpose of residence only and for no other purpose."
(emphasis supplied)
c
The respondent in para 6 of the plaint, both original as well as amended,
did not give particulars as to the change of use of the premises including from
what period there was change in the use of the premises. As is evident from
para 6 of the written statement both before and after the amendment the
appellant specifically denied that he had started using the premises for the
D purposes other than the residence._ It is explained that the Managing Director
of the company was living in the demised premises with his family members;
in· one room an office table and office equipments were kept for disposal of
office work at home; the same room was being used as study room of his
family members and that the premises has been continuously used for the
E purpose of residence only and for no other purpose. We fail to understand
as to how it can be said or understood that the appellant had admitted the
case of the respondent in regard to the change of user of the building for the
purpose other than that was leased. To get an order of eviction under Section
13(2)(ii)(b) of the Act a landlord has to plead and establish by proper evidence
that the tenant has been using the building for a purpose other than that for
F which it was leased. It is yet a different issue as to whether use of one room
in big building by the appellant for disposal of office files or for study of
family members can be said to a change in use of the building for a purpose
other than the residential.

In support of the eviction petition, the respondent has deposed that he
G let out the premises on 1.5.1988 through Exbt. P/l and he never allowed the
change of user of the premises from residential to non-residential and that the
change of user came to his knowledge in the year 1990; he had not mentioned
in his petition that any specific portion of the building was being used as
-t,
office; he did not see any person working in the oft;ice but while he was
H standing outside the building, he saw some visitors; he admitted that the
ATUL CASTINGS LTD. v. B.G. SINGH [SIVARAJ V. PATIL, J.] 131
appellant used to have a regular office in SCO No. 42, Sector 7-C, Chandigarh. A
The said office was closed somewhere in the year 1996. It may be noticed that
the building was taken on lease by the appellant-company for the residence
(
of its Managing Director; the address of the office of the appellant-company
was given as SCO No. 42, Second Floor, Sector 7-C, Madhya Marg, Chandigarh
in the eviction petition itself filed before the Rent Controller. It appears the
appellant was served with the notice of the proceedings on the san1e address. B
The statement of the respondent that the appellant was using one room in
the building as office since 1990 and that the office at SCO No. 42, in Sector
7-C, Chandigarh was closed in 1996 clearly indicates that the office of the
appellant company was not in the building in question when the petition for
eviction was filed. In para 27 of its judgment, the appellate authority has c
referred to the statement of R.K. Aggarwal, (RW-1) (the Managing Director
of the appellant-company). In his deposition, he has stated that he is residing
in the house in question alongwith his wife, mother, two sons and their wives
and children and the house is being used purely for residential purposes from
the time it had been taken on rent; that he was keeping some important files
relating to affairs of the company where he does some work relating to the D
files after office hours; no board or nameplate or hoarding of the company
is displayed in the house in question; the office of the company was in House
No. 2163, Sector 21-C Chandigarh from where it was shifted to SCO No. 84-
....
85 Sector 17-C, Chandigarh. Thereafter, it was again shifted to SCO No. 42,
Sector 7C, Madhya Marg, Chandigarh and at present, the office is located in E
the factory premises of the company, Nalagarh. The Rent Controller as well
as the appellate authority expected the appellant to lead negative evidence
to prove that part of the building was not being used as office. This approach
is opposed to settled principle of law in regard to discharge of burden of
proof. The authorities have proceeded to accept the case of the respondent
~ mainly on the basis of so-called admission said to have been made by the F
appellant in the written statement. A reading of statement made in written
statement in the context has to be integrated and not truncated. If para 6 of
the written statement is read as a whole instead of picking up one sentence
or part cf it, there would be no scope to say that the appellant admitted the
case of the respondent as to change of user of the building. There is no other
G
evidence to support that there has been a change of user of the building. In
our view, the Rent Controller as well as the appellate authority committed a
manifest error in proceeding to order eviction of the appellant in the absence
j
of evidence supporting the ground of change of user of the building. The
findings in the absence of necessary pleading and supporting evidence cannot
be sustained in law. It is not a case of concurrent findings based on the H
132 SUPREME COURT REPORTS [2001] 3 S.C.R.

A evidence; it is a case of concurrent error. Unfortunately, the High Court has
failed to see this basic shortcoming in the case of the respondent. Hence, we
have no hesitation in holding that the change of user of the building as a fact
was not established to apply Section 13(2)(ii)(b) of the Act.

Now we will focus our attention to the issue as to whether use of one
B room to do some home work relating to office and use of the same room as
study room by the members of the family in the absence of Managing Director
of the appellant amounts to change in user of building having regard to the
facts of the case on hand. The map at Annexure R/3 shows that the building
is a big one with bed rooms, dining, drawing etc., unmistakably showing that
C it is a residential building. One small room is shown as office. Introductory
para 2 of the agreement to let (Exbt. P/3) dated 1.1.1992 shows that the
respondent agreed to let out the premises to the appellant for a period of 11
months from 1.1.1992 for the residence only on the terms and conditions
mentioned below under the said paragraph. There are as many as 16 terms
and conditions. Out of them, conditions 7 & 8 read thus :-
D
''7. That the second party will not sublet or part with the possession
of premises in favour of any body without the written consent
of the party of the first part~

8. That the second party shall not make any addition or alteration
E in the premises without the written consent of the first party."

There is no specific clause in the agreement that the appellant shall not
use even one room as study room for the members of the family or he shall
not use one room to do any office work at home. The respondent having
chosen to incorporate conditions 6 & 7 in the agreement (Exh.P-3) relating to
F sub- letting and addition or alteration in the premises has not chosen to add
a specific clause prohibiting use of any portion of the building in a particular
manner although it is stated in the introductory para of Exh. P-3, that the
premises is leased for the residence only. There is no evidence to show that
in one roorn the office of the appellant-company was functioning or that any
G transactions used to take place in that room relating to the appellant-company
or any regular business of the company was carried out or that officials or
other members of the public used to visit the building as the office of the
company. It is not uncommon that the officials, executives, officers,
businessmen, industrialists and people engaged in the other vocations may
have some home work to do. In these days computers, internet and other like
H facilities are kept at home for convenience and use. In residential buildings
ATUL CASTINGS LTD. v. B.G. SINGH [SHIVARAJ V. PATIL, J.] 133

where persons live with family members, a room may be used for the purpose A
of doing home work relating to office files or study of children or allied or
ancillary use in a building leased for residential purposes. So long as in a
residential building, there is no regular commercial activity or carrying on of
business and regular office with interaction of the public and customers, etc.
it is not possible to say that use of one room for doing home work or study
itself will change the user of the building and that the classification and B
character of the building is changed. But it continues to remain a residential
building so also its purpose remains as residential. Use of a room in a
residential building for personal purpose should be distinguished from use of
such a room for business, industry or other commercial activity or as a regular
public or professional office. We must add that each case has to be considered C
on its own facts on the basis of the pleadings and evidence to find out as
to whether there has been a change of user in the building from residential
to non-residential as it is not possible to give exhaustive list of situations as
to change of user of buildings.

Section 13(2)(iii) and (iv) take care of situations where tenant has D
committed such acts as are likely to impair materially the value or utility of
the building or the rented land or where the tenant has been guilty of such
acts as arc a nuisance to the occupiers of buildings in the neighbourhood.

The interpretation of provision must be purposive and not unduly E,
restrictive or narrow. If we interpret Section 13(2)(ii)(b) in a restricted and !

narrow manner, it will be difficult for any tenant occupying a residential
building to protect himself from arbitrary eviction and even to have freedom
to use the building even for residential purpose as he wants. Such interpretation
will defeat the intent and purpose of the Statute.
F
This Court in Gurdial Batra v. Raj Kumar Jain, [1989] 3 SCC 441 had
an occasion to consider the very question of the change of user within the
meaning of Section 13(2)(ii)(b) of the Act. That was a case in which the
appellant had taken the premises on rent from the respondent for running a
repair shop of cycles and rickshaws. He carried on side by side selling G
televisions in the premises for about seven months but had to stop the same
as it was not viable. The Rent Controller rejected the eviction petition. The
appellate authority at the instance of the landlord granted eviction. The High
Court declined to interfere when moved by the tenant. Dealing with the
question whether there has been a violation of the terms of tenancy by using
the premises for a purpose other than that for which it had been leased, this H
134 SUPREME COURT REPORTS [2001] 3 S.C.R.

A Court in para 6 & 7 stated thus:-

"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 interests of the
landlord and is intended to restrict the use of the landlord's premises
B taken by the tenant under lease. It is akin to the provision contained
in Section 108(0) of the Transfer of Property Act.

A house let for residential purpose would not be available for being
c used as a shop even without structural alteration. The concept of
injury to the premises which forms the foundation of clause (b) 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.P. 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
D 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. 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
E business · did not bring about change of user as contemplated in
Section 108(c) of the Transfer of Property Act.

7. The landlord part with the possession of the premises by giving a
lease of the property to the tenant for a consideration. Ordinarily, as
long as the interest of the landlord is not prejudiced, a small change
F in the user wolild not be actionable."

In para 5 of the same judgment, referring to observations of Lord
Diplock, J. inDupport Steels Ltd v. Sirs, (1080) 1 All ER 529, it is stated thus:-

"While respectfully agreeing with the said observations of Lord
Diplock, that the Parliament legislates to remedy and the judiciary
G
interpret them, it has to be borne in mind that the meaning of the
expression must be found in the felt necessities of the 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
H could be called an. '
allied business in the expanding concept of
·~
ATUL CASTINGS LTD. v. B.G. SINGH [SHIVARAJ V. PATIL, J.) 135
departmental stores, in our opinion, in this case there was no change A
.;
of user which attract the mischief of Section 13(2)(ii)(b)."

This judgment supports the case of the appellant.
~
In Bishamber Dass Kohli (dead) by LRs. v. Satya Bhalla, (Smt.) [1993]
I SCC 566, this Court held that change in use of a part of the premises as B
lawyer's office without seeking permission of the landlord amounted to change
in user from residential to scheduled building and it constituted a valid
ground of eviction under Section 13(2)(ii)(b) of the Act; change in user may
be even in respect of a small portion and need not be in respect of the entire
building or a substantial part thereof. Facts of the case were that the suit
.. premises was let out to the respondent solely for residential purpose; the c
respondent's husband, a lawyer, established his office in a part of the suit
>
premises and started using the same for that purpose. The Rent Controller
ordered eviction under Section 13(2)(ii)(b) of Act The appellate authority
affirmed it The learned Single Judge of the High Court in revision set aside
the order of eviction holding that the building let out as a residential building D
had become a 'scheduled building' by use of a part thereof as lawyer's office
by the tenant's husband. This Court stated that Section 4 of the Act deals
... with the fixation of fair rent and for that purpose 'scheduled building' is
treated differently from a residential building and that the same is the position
., .
with regard to the ground of eviction contained in Section 13(2)(ii)(b) wherein
change in user of the building is alone significant for constituting the ground. E

-- The object is that the parties must remain bound by the terms of the lease.
Para 8 of the said judgment is to the following effect:-

"8. It is clear that if the change in user of the building is of the kind
that it makes the residential building let out for residential purpose
alone change its character and become a 'scheduled building' as F
defined in Section 2(h) of the Act without the written consent of the
landlord, the ground of eviction under Section 13(2)(ii)(b) is made
out"

According to us, this judgment is on the facts either admitted or
established in that case. The building was let solely for residential purpose;
G
husband of the tenant established his office as lawyer's office in a part of the
suit premises, hence it became a 'scheduled building' within the meaning of
.J
Section 2(h). In terms of para 8 of the judgment e:x.'tracted above, a building
let out for residential purpose alone, changes its character and becomes a
scheduled building as defined under Section 2(h) of the Act, without the H
136 SUPREME COURT REPORTS [2001] 3 S.C.R.

A written consent of the landlord, the ground of eviction under Section 13(2)(ii)(b)
is made out. Section 2(d), 2(g) and 2(h) define 'non-residential building',
'residential building' and 'scheduled building' respectively and they are three
different categories. Scheduled building is one which is being used by a
person engaged in one or more of the professions specified in schedule I of
the Act partly for his business and partly for his residence. In the case on
B hand, the facts are entirely different. The appellant even if it is taken as using
one room as office for his personal purpose to do homework, it does not
convert the building into a scheduled building in as much he did not use the
building partly for his business and partly for his residence. Hence the
decision aforementioned has no application to the facts in the present case.
c The case of M Arul Jothi & Another v. Lajja Bal (deceased) and
Another, [2000] 3 SCC 723 also does not support the case of the respondent
as it is on the facts of that case dealing with a specific clause contained in
the lease deed. In that case, eviction petition was filed under Section 10(2)(ii)(b)
of T.N. Building (Lease and Rent Control) Act, 1960 on the ground that the
D appellant was using building for a purpose other than that for which it was
leased. There was a specific prohibition clause in the rent deed which stated
that " the premises shall be used by the tenant only for carrying on his own
business ........ and the tenant shall not carry on any other business than the
above-said business." Looking to the use of the words only coupled with the
other sentences that the tenant shall not carry on any other business than
E the one specified, in para 10 of this judgment the Court has observed thus:-
"Having heard learned counsel for the parties in our considered view
of the cases cited on behalf of the appellants were all those where
there was no specific clause restricting the use of the tenanted
accommodation. On the other hand, in the case in hand, there is a
F specific prohibition clause in the rent deed. In the present case there
is a specific clause which states "shall be used by the tenant only for
carrying on his business . ... and the tenant shall not carry on any
other business than the abovesaid business". By the use of the word
"only" with reference to the tenant doing business coupled with the
G last three lines, namely, "the tenant shall not carry on any other
business than the abovesaid business'', clearly spells out the intent
of the parties which restricts the user of the tenanted premises, only
for the business which is stated therein and no other.

H The learned Senior Counsel for the respondent emphasizing as to the
ATUL CASTINGS LTD. v. B.G. SINGH (SHIVARAJ V. PATIL, J.] 137
use of the words for residence only in the lease agreement submitted that the A
aforementioned case fully supports the respondent. We do not think so, for
the reasons more than one. That was a case where the shop, a non-residential
building, was let out on condition to carry on only a specified business and
no other business; although in the lease deed in the case on hand it is stated
that the premises was taken for residence only; there is no other clause
specifically prohibiting the use of a room in the building even for either study B
or to carry on some home work of the office. On facts also, as already noticed
above, change of user of the premises has been neither properly pleaded nor
established. Paragraph 10 extracted above, was more on the point dealing with
a specific prohibitory clause in the lease deed. The Court looking to the word
only coupled with other specific prohibitive clause took that view. C
In this case, with which we are concerned, there is no specific clause
in the lease agreement prohibiting use of even a room in the building for
disposal of some fil(;:s at home pertaining to his office and for the study of
family members. The fact is that the appellant is living with the members of
his family; the building did not cease to be a residential building and the D
purpose and character of the use of the building also did not change. As a
matter of fact also, the respondent, as already noticed above, has failed to
establish the change of user of the building by necessary pleading and
evidence.

Under these circumstances, the issue is answered in the negative. In the E
result for the reasons stated hereinabove, the impugned judgment and order
of the High Court are set aside. The appeal is allowed and the petition filed
for eviction by the respondent is dismissed with no order as to costs.

M.P. Appeal allowed.
F