Full Judgment Text
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PETITIONER:
KARTAR SINGH
Vs.
RESPONDENT:
CHAMAN LAL & OTHERS
DATE OF JUDGMENT:
14/03/1969
BENCH:
GROVER, A.N.
BENCH:
GROVER, A.N.
SHAH, J.C.
CITATION:
1969 AIR 1288 1969 SCC (1) 760
CITATOR INFO :
E&F 1978 SC 22 (13)
RF 1979 SC 460 (13)
R 1992 SC 799 (11)
ACT:
Delhi & Ajmer Rent Control Act, 1958 s. 14(1) (h)-Premises
let for residence-cum-business to tenant predecessor-in-
interest Tenant acquiring residential premises-Tenant
establishes same business whether liable to be evicted.
Landlord and Tenant-Premises let for residence-cum-business
to predecessor-in-interest of tenant-Tenant acquires
residential premises-Establishes business after a break-If
liable to be evicted.
HEADNOTE:
The predecessor-in-interest of the respondents who was a
practising advocate, took on rent certain premises for
residence. He could with the written consent of the
appellant-landlord set up his professional office also
there. After the death of their predecessor-in-interest the
respondents lived in the premises and sometimes later two of
the respondents qualified a.% lawyers and started having an
office in the premises. The appellant filed a suit for the
respondents’ eviction on the ground that the respondents had
acquired a "suitable residence" by building a large
residential house and were liable to- be ejected under s. 13
(1) (h) of the Delhi & Ajmer Rent Control Act, 1952. During
the pendency of the suit the Delhi Rent Control Act, 1958
came into force and under s. 14(1) (h) of the Act, the word
"suitable" was omitted. The trial Court dismissed the suit
holding that since the premises had been let out to their
predecessor-in-interest not for residential purpose alone
but also for business purposes, no eviction could be ordered
under the provisions of s. 13 (1) (h) of the old Act or s.
14(1) (h) of the new Act. The first appellate Court, and
the High Court in revision affirmed the order of the trial
Court. Dismissing the appeal this Court,
HELD:Assuming, that s. 14(1)(h) of the new Act,
applied, having regard to its language, the original tenant
in the present case was one who was in occupation of
premises which were used for a composite purpose, namely,
residence and profession. There could, therefore, be no
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eviction merely by acquisition of vacant possession of a
residence by such a tenant and the position would be the
same with regard to his heirs and legal representatives, the
present respondents. Section 14(1) (h) can apply only where
a tenant is in occupation of premises which are only
residential; then alone he would have to go if he acquires
or has residential accommodation of his own. [14 F]
The decision of this Court in Dr. Gopal Das Verma v. Dr. S.
K. Bhardwaj [1962] 2 S.C.R. 678 applied apprositely to this
case. The test of dominant intention with regard to the use
of the premises was not applied in Dr. Gopal Das Vermals
case. [13 F-G; 15A]
In view of the finding of the courts below that the premises
had been let to the predecessor-in-interest of the
respondents for residence-cum profession, the submission
that the permission was personal to the predecessor-in-
interest of the respondent, which came to an end on his
death could not be entertained. [15 E] L 12Sup.CI/69-2
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JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 661 of 1966.
Appeal by special leave from the judgment and order
dated December 8, 1964 of the Punjab High Court, Circuit
Bench at Delhi in Civil Revision No. 92-D of 1962.
S.C. Manchanda, S. K. Mehta, and K. L. Mehta, for the
appellant.
Bishan Narain, I. S. Sawhney and M. R. Chhabra, for the
respondents.
The Judgment of the Court was delivered by
Grover, J. This is an appeal by special leave from a
judgment of the Punjab High Court (Circuit Bench at New
Delhi) dismissing a petition for revision directed against
the concurrent judgments of the courts below dismissing the
action for eviction filed by the appellant against the
respondents from a premises on Ajmal Khan Road, Karol Bagh,
New Delhi.
The facts may be succinctly stated. By means of a rent deed
dated February 13, 1950 the appellant, who is the owner of
the suit premises inducted as a tenant Labha Mal Arora, now
deceased, who was a practising Advocate. Clauses (2) and
(6) of the rent deed were in the following terms
"2. That the tenant agrees to use the property
for his residence.
6.That the tenant shall not assign or
sublet the above said property or any part
thereof without the written consent of the
landlord, or utilise the Property for
any purpose other than that mentioned above."
On the same date a letter Ex. D-2 was written
by the appellant to the late Labha Mal Arora
saying:
"As per our oral talk regarding your tenancy
for my house No. 6/64, I have no objection
your having your professional office
"alongwith residence" there provided it is not
inconsistent with the provisions of Delhi Im-
provement Trust Act."
It appears and it has been so found, that Labha Mal Arora
who had his office at a different place shifted the same to
the suit premises where he was residing with his family. He
died in the year 1952. Till 1952 the premises were being
used only for residence by his sons and widow. in August
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1957 Chamanlal respondent no. 1, who qualified himself as a
legal practioner, started having an office in the premises.
It would appear that the other
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son respondent No. 3 also started practising as a lawyer in
the same premises some time later. On 21-11-1957 the
appellant served a notice on the sons and widow of the
deceased Labha Mal Arora that it has been learnt that they
had constructed a double storeyed building in Naiwala Karol
Bagh and that since the suit premises were required bona
fide for the personal residence of the appellant they should
shift to their house and vacate the rented premises. This
was followed by a second notice to the same effect.
As the possession of the premises was not delivered the
appellant instituted a suit for ejectment against the
respondents under the Delhi & Ajmer Rent Control Act, 1952
(hereinafter called the old Act). Two grounds were taken
for seeking eviction. One was that the respondents had
built -a large residential house and were liable to be
ejected under S. 13(1)(h) of the old Act. The second was
that the premises were required bona fide for personal use.
It may be mentioned that the second ground was abandoned in
the trial court. The suit was contested by the respondents
on the ground that the late Labha Mal Arora had taken the
premises on rent for residence as well as for an office for
professional purposes and the premises had been used as
residence-cum-office. For this reason it was asserted that
the construction of a residential house by the respondents
did not furnish a ground for eviction.
During the pendency of the suit the Delhi Rent Control Act,
1958 (hereafter called the new Act) came into force.
Section 14(1)(h) which was equivalent to S. 13(1)(h) of the
old Act contained the word ’suitable’ which was omitted as
it appeared before the word "residence" in S. 13(1)(h); the
relevance and significance of that omission will be noticed
presently. The trial court relied inter alia on the letter
Ext. D-2 and the statement of Chaman Lal respondent
according to whom two rooms were used by the late Labha Mal
Arora as his office and another one room was being used by
his clerk and held that the premises had been let for
"residence-cum-business purposes". The argument that the
late Labha Mal Arora had only been granted a licence to use
the premises for professional purposes and that the licence
came to an end on his death, was repelled. It was found
that the respondents had built a residential house, and
since the premises in suit had been let out to their
predecessor-in-interest not for residential purpose alone
but also for business purposes no eviciton could be ordered
under the provisions of S. 13(1)(h) of the old Act or s.
14(1) (h) of the new Act. The Additional Senior Sub-Judge
dismissed the appeal preferred by the appellant in agreement
with the decision of the trial court. The following portion
from his judgment relating to the finding with regard to the
purpose for
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which the premises had been let out to the late Labha Mal
Arora may be reproduced:
"It is in evidence that prior to taking the
premises in suit on rent from the appellant,
Labha Mal deceased, was having his
professional office as an advocate in Sadar
Bazar, Delhi, and on taking the premises in
suit on rent he had shifted his office in the
suit premises. This fact is fully supported
by the statement of Shri Chaman Lal,
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respondent No. 1, and the notices, Ex. D.W.
9/1, and D.W. 9/2 issued by Shri Labha Mal
from the suit premises. Shri Chaman Lal has
stated that out of the five rooms of the suit
premises, two rooms were’ used by his deceased
father as office. From the above also ’it is
proved that the suit premises were let by the
appellant to Shri Labha Mal deceased for
residence-cum-business purposes."
On the question of the ambit and scope of S. 13(1)(4) _of
the old Act the learned Judge expressed the opinion that it
would be unreasonable to hold that a tenancy which had been
created both for purposes of residence and carrying on a
profession could be successfully terminated merely by
showing that the tenants had acquired a suitable residence.
The appellant approached the High Court on the revisional
side. J. S. Bedi, J. considered the rent deed Ext. P-3 and
the letter Ex. D-2 as also the other evidence and came to
the same conclusion at which the courts below had arrived.
Reliance was placed on the additional fact that when the
suit was instituted the premises were being used by Chamal
Lal both for purposes of residence and office.
Before dealing with the contentions raised on behalf of the
appellant it is necessary to refer to S. 13(1)(h) of the old
Act and S. 14 (1) (h) and S. 57 of the new Act. Section 13
(1) (h) of the old Act contained a provision that if the
Court was satisfied inter alia that the tenant had whether
before or after the commencement of the Act built, acquired
vacant possession of or been allotted a suitable residence
it could order ejectment. In S. 14(1)(h) of the new Act the
only change that was made was that the word "suitable"
before the word "residence" was omitted. Under section 57
of the new Act notwithstanding the repeal of the old Act all
suits and other proceedings pending under that Act were to
be continued and disposed of in accordance with provisions
of the old Act. According to the first proviso to
subsection (2) the court or other authority "shall have
regard to the provisions of this Act.,, In Karam Singh Sobhi
& Anr. v. Shri Pratap Chand
13
& Anr. (1) this Court had to consider the effect of what was
contained in S. 57 of the new Act. It was held that the
effect of the first proviso to S. 57(2) was that pending
proceedings would continue under the old Act with this
addition that where the new Act had slightly modified or
clarified the previous provisions, those modifications and
clarifications would govern the case. Similarly in Brij
Kishore & Others v. Vishww Mitter Kapur & Others(1) it was
laid down that the first proviso to S. 57(2) of the new Act
must be read harmoniously with the substantive provisions of
subs. (2) and the only way of harmonising the two was to
read the expression "shall have regard to the provisions of
this’ Act" as merely meaning that where 1 the new Act had
slightly modified or clarified the previous provisions those
modifications and clarifications should be applied. These
words did not take way what was provided by sub-s. (2) and
ordinarily the old Act would apply to pending proceedings.
It has been contended by Mr. S. C. Manchanda for the appel-
lant that the new section would be applicable as no radical
departure has been made in S. 14(1) (h) by omission d the
word "suitable" and that there was only slight modification
or clarification of the previous provision, namely, S. 13(1)
(h). In our opinion whether S. 1 3 (1 ) (h) of the old Act
or S. 14 ( 1 ) (h) of the new Act is applied the result, as
will be presently seen, will be the same in the instant
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case.
Coming to the question whether the suit premises were taken
by the late Labha Mal Arora for residence only or for
residence as well as for use as office for carrying on his
professional work of a legal practitioner, it may be
observed that the concurrent finding of the court below is
that the premises had been taken for residential-cum-
business or professional purposes. That finding being one
of the fact must be accepted as final. It would, therefore,
seem that the decision of this Court in Dr, Gopal Das Verma
v. Dr. S. K. Bhardwaj and Another(") can be
appositely applied. In that case it was held that a tenant
could not be ejected under S. 13(1)(h) because the tenancy
of premises let out or used for residence and carrying on of
profession could not be terminated merely by showing that
the tenant had acquired a suitable residence. There the
premises had been let out to a doctor who was an ear, nose
and throat specialist. It was found that the premises had
been used by the tenant for professional as well as
residential purposes with the consent of the landlord. The
case, therefore fell outside s. 13 (1) (e) but even under S.
1 3 ( 1 ) (h) eviction could not be ordered. This is what
was said in that connection.
(1) [1964] 4 S. C. R. 647. (2) A. I. R. (52) 1965
S. C. 1574.
(3) [1962] 2 S. C. R. 678 at p. 685.
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"If the premises from which ejectment is
sought are used not only for residence but
also for profession how could S. 13(1)(h) come
into operation? One of the, purposes for
which the tenancy is acquired is professional
use, and that cannot be satisfied by the
acquisition of premises which are suitable for
residence alone, and it is the suitability for
residence alone which is postulated by s.
13(1)(h). Therefore, in our opinion, it would
be unreasonable to hold that the tenancy which
has been created or used both for residence
and profession can be successfully terminated
merely by showing -that the tenant has
acquired a suitable residence."
In the above case this Court further held that S. 2(g) of
the old Act which defined the word "Premises" referred to
three kinds of user to which the premises can be put to i.e.
residence, commerce and any other purpose. This necessarily
included residence and commerce combined. Since it was
shown that the premises had been let both for residence and
for commercial purposes it did not follow that the premises
ceased to be premises under S. 2(g); they continued to be
premises under the last clause’ of that provision. The
definition of ’premises’ in the new Act is contained in S.
2(1) and it is the same as in S. 2(g) of the old Act. The
word ’tenant’ is defined by S. 2 (1 ) of the, new Act to
mean "any person by whom or on whose account -or behalf the
rent of any premises is or but for a’ special contract would
be, payable ............Having regard to S. 14(1)(h) of the
new Act the original tenantin the present case was one who
was in occupation of premises which were used for a
composite purpose, namely, residence and profession. There
could, therefore, be no eviction merely by acquisition of
vacant possession of a residence by such a tenant and the
position would be the same with regard to his heirs and
legal representatives, the present respondents. It is quite
clear that S. 14(1)(h) can apply only where a tenant is in
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occupation of a premises which are only residential; then
alone he would have to go if he acquires or has residential
accommodation of his own.
Mr. Manchanda has next contended that the decision of this
Court in Dr. Gopal Das Verma’s case(1) is distinguishable
because it appeared from various facts that the dominant
intention was to use the premises as a nursing home. He
submits that in the present case the dominant intention was
to use the premises as residence and the late Labha Mal
Arora was -merely given permission or licence which was of a
personal nature to have his
(1) [1962] 2 S.C.R.678 at p.685.
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office as well there. We are unable to find that any test
of dominant intention was applied ’in Dr. Gopal Das Verma’s
case(1).
The position in England is different where premises are let
partly for business purposes and partly for residence.-
There the statutory provisions lay down that where a
dwelling is let partly for business purposes and partly for
residence, the Rent Act applies to the whole(1). Moreover
where there is no covenant as to user and the question is
what user was contemplated, the Court will infer what use
was contemplated by the tenancy agreement; the test was "the
main purpose" or "predominant intention" or "the prevailing
contemplation" or "a preponderating contemplation" for the
letting. (2 ) (ibid, p. 69). We are unable to derive any
assistance from the English cases on the point. ’
Lastly Mr. Manchanda sought to raise the question of the
permission contained in the letter Ext. D-2 being a licence
which was personal to late Labha Mal Arora and which should
be deemed to have come to an end on his death. It is
further pointed out that after his death for a number of,
years the respondents used the premises purely for
residence. In view of the finding of the courts below that
the premises had been let to the predecessorin-interest of
the respondents for residence-cum-business or profession,
this submission cannot be entertained.
For all the above reasons this appeal fails and it is
dismissed with costs.,
Y.P. Appeal dismissed,
(1) [1962] 2 S. C. R. 678 at p. 685.
(2) (See the Rent Acts by R. E. Megarry Q. C. Tenth Edition
pp. 87-88.)
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