Satish Kumar Mittal, J. — The tenant has filed this revision petition under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949, challenging the order of his ejectment passed by the Rent Controller and affirmed by the Appellate Authority on the ground that the tenant has changed the use of the demised shop, without the consent of the landlady.

2. In this case, in the year 1978, the instant ejectment application was filed by the respondent-landlady for ejectment of the petitioner-tenant from the shop in question, which is situated in Ludhiana and which was on monthly rent of Rs. 7/-, on the following three grounds :

a) That the respondent neither paid nor tendered the rent since 1.5.1975;

b) That the tenant has changed the use of the shop from hosiery business to manufacturing and selling trunk, boxes and tumblers etc., without the written consent of the landlady;

c) That the tenant has materially impaired the value and utility of the shop in question by constructing a wooden parchhati in the shop.

3. The petitioner-tenant contested the ejectment application. The claimed arrears of rent along with interest and costs, as assessed by the Rent Controller, was tendered on the first date of hearing. Regarding the change of user, it was pleaded that the shop was taken for running the commercial activities and since the inception of the tenancy, those commercial activities were being carried in the shop, therefore, the tenant never changed the use of the demised premises. Regarding the impairing of the value and utility, it was stated that no wooden parchhati, as alleged by the landlady, was constructed by the tenant and the same was existing since the inception of the tenancy.

4. The Rent Controller held that since a valid tender of arrears of rent was made by the tenant on the first date of hearing, therefore, tenant was not liable to be ejected on the said ground. Regarding the impairing of the value and utility of the demised premises, it was held that the tenant has not impaired the value and utility of the shop in dispute, as alleged by the landlady. However, the Rent Controller ordered the ejectment of the petitioner-tenant on the ground of change of user, while holding that from the date of inception of the tenancy, the tenant was doing the hosiery business in the demised shop, but in the year 1978, he had started the manufacturing and sale of trunks, iron boxes and buckets etc. in the demised premises, without the written consent of the landlady. It was held that the manufacturing and sale of trunks, iron boxes and buckets etc. in the demised premises from the hosiery business, amounts to change of use of the demised premises, which is not permissible without the written consent of the landlady.

5. On an appeal filed by the tenant, the Appellate Authority affirmed the ejectment order passed by the Rent Controller. Hence this revision petition.

6. During the pendency of this revision petition, the petitioner-tenant as well as the respondent-landlady died and their legal representatives have been brought on record.

7. Learned counsel for the petitioner submits that both the courts below have erred in law as well as facts while ordering ejectment of the petitioner from the demised shop on the ground of change of user. He submits that in this case, no rent note or rent deed was executed at the time of letting out of the demised premises. So, it cannot be said that the shop in dispute was let out for any specific purpose. However, he submits that the shop was taken on rent for doing the commercial activities and since the inception of the tenancy till the filing of the ejectment application, the commercial activities were being earned in the shop. Learned counsel submits that the tenant was earlier doing the hosiery business and later on, he shifted to the business of manufacturing and sale of trunks, iron boxes and buckets etc., without causing any damage or doing any harm to the building. He submits that shifting from one business to another, without causing any damage or impairing the value and utility of the building, does not amount to any change of use and for such change of use of the demised premises, no written consent of the landlord is required. Learned counsel contends that both the courts below have recorded a finding that the petitioner has not impaired the value and utility of the demised premises and on that ground, the ejectment application has been dismissed, therefore, it is clear that by mere shifting the hosiery business to the manufacturing and sale of trunks, iron boxes and buckets etc.. the petitioner has neither caused any damage to the building nor has materially impaired the value and utility of the demised shop. Therefore, the order of ejectment passed by both the courts below is liable to be set aside.

8. In support of his contentions, learned counsel for the petitioner has relied upon the decision of the Supreme Court in Mohan Lal v. Jai Bhagwan, 1988 (1) RCR (Rent) 444 : AIR 1988 Supreme Court 1034, where the shop was let out for carrying on business of liquor vend and tenant had shifted to general merchandise business. It was held that such change of business does not amount to change of user, as the said change would not cause any mischief or detriment or impairment to the shop. Learned counsel further relied upon another decision of the Supreme Court in Rattan Lal v. Asha Ran1., 1988 (2) RCR (Rent) 549 : 1988 (2) Haryana Rent Reporter 625, where the tenant had shifted from grocery business to a book-shop. It Was held that this change does not amount to change of user. Learned counsel also relied upon another decision of the Supreme Court in Gurdial Batra v. Raj Kumar Jain , 1989 (2) RCR (Rent) 233 : 1989 (2) Punjab Law Reporter 313, where the premises was let out for business of repairing of cycles and rickshaws and the sale of televisions was carried out temporarily. It was held that this does not constitute a change of user. Learned counsel has also relied upon a decision of this Court in Sudarshan Lal (died) through LRs v. Smt. Bhushan Sehgal, 2000 (2) RCR (Rent) 36 : 2000 (2) All India Rent Control Journal 327’, in which the premises was let out for doing the embroidery work, but subsequently the tenant shifted to hotel business. It was held that merely change of user from one commercial purpose to other does not amount to change of user. In the last, learned counsel relied upon another decision of this Court in Jagdish Chand v. Surinder Kumar, 2005 (1) RCR (Civil) 1 : 2004 (2) RCR (Rent) 647 : 2005 (1) Punjab Law Reporter 509, where the shifting of business of cloth to the business of selling stationery items was held to be permissible, not amounting to change of user. In the said judgment, it was again reiterated that changing of one business to another without harming the nature of use of the premises does not amount to change of use of the building.

9. On the other hand, learned counsel for the respondent-landlady submits that though no rent deed or rent note was written at the time of creation of tenancy, but the shop in question was let out to the petitioner-tenant for doing the hosiery business. He submits that from the very inception of the tenancy, the petitioner-tenant was doing the hosiery business upto 1978 and thereafter, he had shifted to the business of manufacturing and selling iron trunk, boxes and tumblers etc., without obtaining written consent of the landlady. Learned counsel, while referring to the pleadings, submits that the landlady took the definite stand that the demised shop was rented out for doing the hosiery business and the tenant had started using the shop for manufacturing and selling trunk, boxes and tumblers etc. without the written consent of the landlady. It was specifically pleaded that manufacturing of iron boxes causes damage to the building. It also creates noise and vibrations. It was further pleaded that the landlady was an old woman and the noise caused from the manufacturing of the iron boxes with the help of hammers was causing special inconvenience to her as she was suffering from heart disease. While referring to the application Ex.A4, made by the tenant to the Municipal Corporation, Ludhiana, for obtaining hammering license, and the assessment order Ex.PW4.A, learned counsel submits that in the year 1977-1978, the tenant had started the business of manufacturing and selling trunk, boxes and tumblers etc. in the demised shop with the help of hammers, which causes great noise and vibration. Learned counsel further submits that by shifting the hosiery business to the business of manufacturing and selling trunk, boxes and tumblers etc. with the help of hammers, the petitioner-tenant is not only causing damage to the building, but it also causes great nuisance and such a change without the consent of the landlord was not permissible under the Act. Learned counsel for the respondent-landlady further points out to statement of AW 1 Gurcharan Dass and AW6 Dr. K.L Bhatia and submits that due of the use of hammers by the tenant in the process of manufacturing of iron boxes, great nuisance is caused, which adversely effected the health of the landlady, who was living on the upper floor of the shop. Learned counsel submits that if the premises was rented out for the purpose of a trade and the tenant starts using the premises for the purpose of manufacture or production of materials after installing machinery, then such change would amount to use of the premises other than the one for which the premises was let out. He submits that there is a difference between shifting of one trade to another trade and from one trade to manufacturing. In support of his submissions, learned counsel for the respondent relies upon a decision of the Supreme Court in Bharat Lal Baranwal v. Virendra Kumar Agarwal., 2003 (1) RCR (Rent) 178 : AIR 2003 Supreme Court 1056, where the use of demised premises by the tenant, which was let out for business purposes, for manufacturing activity without consent of landlord was held to be change of user. He has also relied upon a decision of this Court in Bakshi Singh and another v. Naubat Rai, 1969 RCR (Rent) 1045. where the shifting ofbusiness of sale of Toka Machines to manufacturing spare parts of Toka Machines was held to be the change of user. He further relies upon another decision of this Court in Bir Singh v. Harjinder Kaur and anr., 1978 (1) RCR (Rent) 440. where the premises was let out for selling the furniture, but the tenant also started carrying on repairs and manufacturing of furniture in the rented premises and this act on the part of the tenant was held to be misuser of the premises.

10. From the above arguments of learned counsels for both the parties, in the facts and circumstances of this case, the controversy arising for consideration and determination is whether the change of hosiery business to manufacturing and selling trunk, boxes and tumblers etc. by a tenant without the consent of the landlord would amount to the change of user or not. Undisputedly, when the shop in question was let out in the year 1939, no rent note or rent deed was executed, specifying any particular purpose for which the shop was let out. However, the landlady has specifically pleaded that the shop was let out to the tenant for running the hosiery business. The tenant had taken the stand that the premises was taken out for running the commercial activities in the shop and those activities were being run till the filing of the ejectment application, therefore, there was no change of user. However, from the evidence on record, it has been proved that from the inception of the tenancy, the demised shop was being used for running the hosiery business and it was only in 1978, when the tenant started manufacturing and selling iron trunk, boxes and tumblers etc. in the shop without written consent of the landlady. Though in the written statement, the tenant took the stand that he is running the commercial activities in the demised shop but from his application Ex.A4, affidavit and assessment order Ex.PW.4/A it has been established that in the year 1978, he had started manufacturing and selling trunk, boxes and tumblers etc., with the use of hammers and other cutting machines. It has also been proved by the landlady by examining Dr. K.L Bhatia as A.W.6 that with the use of iron hammers for the manufacturing of iron boxes etc., great noise and nuisance was caused, which adversely effected the health of the landlady, who was residing on the first floor of the shop. In the light of these facts and circumstances, it is to be determined whether the shifting of hosiery business to the manufacturing and selling trunk, boxes and tumblers etc., without the consent of the landlady, would amount to change of user or not.

11. The various judgments cited by learned counsel for both the parties deal with two category of cases. One category is of those cases where the tenant has shifted from one trade to another trade or from one commercial activity to another commercial activity without causing any damage to the rented building or causing any nuisance. The other category covers those cases where the tenant has shifted from trade or commercial activity to the manufacturing activity. In Hari Rao v. N. Govindachari & Ors., 2005 (2) Rent Control Reporter 344 (SC), the Supreme Court has noticed the difference of two category of cases, while observing as under :

“6. On the plain terms of the statute, uninfluenced by authorities, it appears to us that user of the building for a purpose other than that for which it was leased, has to be considered in the context of Section 21 of the Act which prohibits conversion of a residential building into a non-residential building except with the permission in writing of the Controller, any covenant in that behalf entered into by the tenant and the nature of the tenancy. In other words when the lease is granted for the purpose of a trade, in the absence of any covenant in the contract between the parties prohibiting a user different from the particular one mentioned in the lease deed, the tenant would be entitled to carry on any trade in the premises, consistent with the location and the nature of the premises. In a case where the premises let out for a commercial purpose, is used by the tenant for a residential purpose, it would be a user for a purpose other than that for which it was leased attracting Section 10(2)(ii)(b) of the Act. Similarly if a building had been let out for the purpose of a trade but a tenant uses the premises for the purpose of manufacture or production of materials after installing machinery that would be a user other than the one for which the building was let. User of a building let out for a trade as a godown may attract the provision. Ultimately, the question would depend upon the facts of a particular case, in the context of the terms of the letting and the covenants governing the transaction and the general spirit of Section 108(o) of the Transfer of Property Act. Merely because a shop let out for trade in shoes and other leather goods, is used by the tenant also for the purpose of trading in readymade garments, it could not be held to be a user by the tenant of the premises for a purpose other than that for which it was leased.”(emphasis added)

Similarly, the Supreme Court in Bharat Lal Baranwal's case (supra) held that when the premises was let out for business purposes, the same cannot be used by the tenant for manufacturing activity without consent of landlord and the same amounts to change of user. In this regard, the Supreme Court has observed as under :

“If the dominant purpose for which a building is let out is maintained, a tenant may not become liable to be evicted. But if the building is let out for residential or business purposes and the tenant starts manufacturing activity or vice-versa, then it would amount to change of user subject to the provisions of the Act in reference.”

On the same principle, this Court in Bakshi Singh's case (supra) has held, that when the premises was taken on rent for selling Toka Machines and subsequently the tenant started manufacturing spare parts of Toka Machines, it was held to be use of the building for the purpose other than it was leased out and order of ejectment was passed. Similarly, in Bir Singh's case (supra), this Court ordered ejectment of the tenant, when the shop which was let out for selling the furniture was subsequently being also used by the tenant for carrying on repairs and manufacturing of furniture. It was held that the business of manufacturing and repair of furniture is not allied to one of its sale. Such act on the part of the tenant would amount to misuser of the premises making him liable for ejectment. Similarly, in Ram Parkash v. Shri Nathu Ram, 1984 (1) RCR (Rent) 214 (P&H), this Court had ordered ejectment of the tenant, when the tenant shifted from the business of selling cycle parts to installing machinery and manufacturing cycle spare parts. On similar lines and in the similar facts, in Shiv Ram and another v. Sheela Devi, 1993 (1) RCR (Rent) 463 : 1993 (1) Rent Law Reporter 143, the Himachal Pradesh High Court ordered the ejectment of the tenant where he had started using the premises for manufacturing steel trunks and sale thereof, when the same was taken by him on rent for storage of bananas, while observing as under :—

11. In the facts of the instant case, it was found that the purpose of letting was storage of bananas and it is the common case of the parties that the user has been changed to that of manufacturing of steel trunks and sale thereof. Neither the business of manufacture of steel trunks and sale thereof is allied to the business for which the premises were let out, nor this change is of a small nature. It is also a matter of common knowledge that manufacturing of steel trunks involves lot of beating and denting of the steel while converting the same into trunks which ultimately is not only likely to impair the utility and result in damage to the premises but also is a cause of nuisance. As such, the change of user would definitely attract the mischief of Section 14(2)(ii)(b) of the Act.”

(emphasis added)

The judgments cited by learned counsel for the petitioner deal with the other category of cases, where the tenant has shifted from one trade to another trade or from one commercial activity to another commercial activity. None of these judgments relates to the category of cases where the tenant has changed from commercial activity to the manufacturing activity. In Mohan Lal's case (supra), it has been observed by the Supreme Court that the building was rented out for purpose of carrying on a business, using it for another business, it will not in any way impair the utility or damage the building and this business can be conveniently carried on the said premises. There was no nuisance created. But in the instant case, it has been proved that by changing the hosiery business to manufacturing of iron boxes by use of hammers, a great nuisance is being created. Therefore, ratio of the aforesaidjudgments cited by learned counsel for the petitioner is not applicable to the facts and circumstances of this case. All the judgments, cited by learned counsel for the petitioner are the judgments where the tenant had shifted from one trade to another and such shifting did not cause any nuisance or any mischief or detriment to the demised premises.

12. In the instant case, even if it is taken that the premises was taken by the tenant for doing commercial activities for running the hosiery business, he cannot change its use by changing to the business of manufacturing and selling trunk, boxes and tumblers etc., with the use of iron hammers, which creates a great noise and nuisance. There is lot of difference between selling the goods and manufacturing of the goods. If the premises is taken for selling the goods, the same cannot be permitted to be used by the tenant for manufacturing goods by installing machinery, without the written consent of the landlord. Thus, in my opinion, in the facts and circumstances of the instant case, both the courts below have rightly ordered ejectment of the petitioner-tenant on the ground that by changing his hosiery business to manufacturing and selling trunk, boxes and tumblers etc., with the use of hammers, he has changed the use of the premises without the written consent of the landlady.

13. In view of the above, I do not find any reason to interfere in the impugned orders passed by both the courts below.

14. Dismissed.

15. However, the petitioner is granted three months time to hand over the vacant possession of the shop in dispute to the respondent subject to his filing undertaking in the trial Court within three weeks.

Petition dismissed.