Article 136 access and change of user: undertaking to vacate did not bar appeal, and relief was moulded despite breach.

An undertaking to vacate premises before the High Court did not bar a tenant from invoking Article 136, and the prior view treating such an undertaking as a bar was no longer good law; the preliminary objection was rejected and the appeal remained maintainable. On change of user, the controlling test was whether the actual business stayed linked, allied to, or ancillary to the purpose for which the shop was let. A shift from merchant business to a restaurant was held, on the facts, to be a departure from the permitted user. Even so, because the change was brief, the tenant had reverted to the original business, and other eviction grounds had failed, eviction was not ultimately ordered and possession was retained on enhanced rent.

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Issues: (i) Whether the tenant's undertaking before the High Court barred an appeal under Article 136 of the Constitution of India. (ii) Whether use of the shop for a restaurant and sale of tea, cold drinks and sweetmeats amounted to change of user under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973.

Issue (i): Whether the tenant's undertaking before the High Court barred an appeal under Article 136 of the Constitution of India.

Analysis: The undertaking given to the High Court did not take away the tenant's right to approach the Supreme Court. A tenant who has undertaken to vacate premises may still invoke Article 136 and seek interim relief. The earlier view that such an undertaking prevented recourse to the Supreme Court was treated as no longer good law.

Conclusion: The preliminary objection was rejected, and the appeal was maintainable.

Issue (ii): Whether use of the shop for a restaurant and sale of tea, cold drinks and sweetmeats amounted to change of user under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973.

Analysis: The governing test was not whether the premises continued to be commercial, but whether the actual business remained linked with, allied to, or ancillary to the purpose for which the shop had been let. Mere change of business does not automatically constitute change of user, but a shift from general merchant business to a restaurant business was held in the facts to be a departure from the permitted user. At the same time, the tenant had reverted to the original business during the pendency of the proceedings, the change had been for a short period, and the other grounds of eviction had failed.

Conclusion: Change of user was established, but eviction was not ultimately ordered and the tenant was permitted to remain in possession on enhanced rent.

Final Conclusion: The tenant succeeded in retaining the shop despite the finding of change of user, with the tenancy continued on higher rent in substitution of eviction.

Ratio Decidendi: An undertaking to vacate premises does not extinguish the constitutional right to appeal under Article 136, and a temporary departure to a business unconnected with the agreed user may amount to change of user, though relief may still be moulded to meet the ends of justice.

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