Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
PETITIONER:
DR. GOPAL DASS VERMA
Vs.
RESPONDENT:
DR. S. K. BHARDWAJ AND ANOTHER
DATE OF JUDGMENT:
02/05/1961
BENCH:
GAJENDRAGADKAR, P.B.
BENCH:
GAJENDRAGADKAR, P.B.
WANCHOO, K.N.
GUPTA, K.C. DAS
CITATION:
1963 AIR 337 1962 SCR (2) 678
CITATOR INFO :
R 1968 SC 438 (4)
D 1978 SC 22 (13,16)
RF 1979 SC 460 (13)
D 1987 SC2179 (11)
R 1992 SC 799 (11)
ACT:
Tenancy--Created or used both for residential and
Professional Purposes-Termination of-Delhi and Ajmer Rent
Control Act, 1952 (Act XXXVIII of 1952), SS. 2(g), 13(1)(e),
13(1)(h).
HEADNOTE:
The respondent as a tenant of tile appellant was occupying a
portion of the premises in question for residence and the
other major portion for his professional work as an ear,
nose, throat specialist. The appellant sued for the
ejectment of the respondent on the grounds that (i) he
required the premises for his own residence and that (ii)
the respondent had built a suitable residence for himself in
another locality. The first plea was based on the ground
mentioned in s. 133(1)(e) and the second plea on S. 13(1)(h)
of the Delhi and Ajmer Rent Control Act, 1952. The trial
court decreed the suit but the appellate court and the High
Court dismissed it on the finding that from the beginning of
the tenancy a substantial part of the premises was used by
the respondent for his professional work obviously with the
consent of the appellant.
Held, that premises let for residential purposes but used by
679
the tenant with the consent of the landlord incidentally for
commercial, professional or other purposes cease to be
premises let for a residential purpose alone and as such the
landlord would not be entitled to eject the tenant under s.
13(1)(e) of the Act. Nor can such a tenant be ejected
independently under s. 13(1)(h) because a tenancy created or
used both for residence and profession cannot be terminated
merely by showing that the tenant had acquired a suitable
residence.
Premises let both for residence and commercial purposes do
not cease to be premises under s. 2(g) and continue to be so
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
under the last clause of s. 2(g).
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 278 of 1959.
Appeal by special leave from the judgment and order dated
April 2, 1957, of the Punjab High Court, in Civil Revision
No. 239 of 1956.
C. K. Daphtary, Solicitor-General of India, S. N. Andley,
Rameshwar Nath and P. L. Vohra, for the appellant.
S. T. Desai and Naunit Lal, for the respondents.
1961. May 2. The Judgment of the Court was delivered by
GAJENDRAGADKAR, J.-The appellant Dr. Gopal Das Varma owns a
double-storeyed house known as 28, Barakhamba Road, New
Delhi. The ground floor of this house consists of a block
of offices and the first floor consists of four flats; three
of these are in the occupation of the appellant while the
fourth has been let out to respondent 1, Dr. Bhardwaj. Dr.
Bhardwaj is an ear, nose, throat specialist, and in one of
the four rooms of the flat be and his wife, respondent 2,
reside, while the, three other rooms are used by him for the
purpose of his profession. Respondent 1 ap. pears to have
taken the premises on lease as early as 1934 although he
executed an agreement of tenancy in favour of the appellant
on November 8, 1935. This agreement shows that the
appellant agreed to let out his flat to respondent 1 on a
rent of Rs. 90 per month payable in advance. The tenancy
was to commence from October 1, 1935, and was intended to
continue up to _September 30, 1936. Parties agreed that the
said
680
tenancy could be renewed on terms to be settled later. In
fact the tenancy has been renewed from year to year and the
flat is still in possession of respondent 1.
In October 1953 the appellant sued the two respondents for
ejectment on two grounds. He alleged that he required the
premises in question for occupation as residence for himself
and for the members of his family and that respondent 1 had
recently built a suitable residence for himself in Golf Link
Area, New Delhi. The first plea was made under s. 13(1)(e)
of the Delhi and Ajmer Rent Control Act, 1952 (Act XXXVIII
of 1952) (hereafter called the Act), while the second was
raised by reference to s. 13(1)(h) of the Act. According to
the appellant, since both the requirements of the Act were
satisfied he was entitled to obtain a decree for ejectment
against the respondents. The claim thus made by the
appellant was denied by the respondents. Respondent 2
pleaded that she was not the tenant of the appellant and she
alleged that it was she and not respondent 1 who had built
the house in Golf Link Area. Respondent 1 admitted that he
was a tenant under the appellant. He, however, contended
that the appellant did not require the premises bona fide
for his personal use, and he urged that he was using the
premises for carrying on his medical profession and as such
the appellant was not entitled to eject him. He supported
his wife in her plea that the house built in Golf Link Area
belonged to her and not to him.
On these pleadings the learned trial judge framed
appropriate issues. He found that respondent 1 alone was
the tenant of the appellant and that the premises in
question had been let to respondent 1 for residential
purpose. According to the trial judge the premises in suit
had been constructed for residential purposes and the flat
in question was let out to respondent exclusively for that
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
very purpose. The trial judge further held that the fact
that a portion of the premises was used by respondent 1 for
his profession or business would not make the tenancy one
for nonresidential purposes. In that view he rejected the
681
argument raised by respondent 1 on the explanation to s.
13(1)(e) of the Act. The trial judge also held that it was
respondent 1 who had built a house in Golf Link Area and
since the said house was suitable for his residence the
requirements of s. 13(1)(h) were satisfied. On the question
about the bona fide requirements of personal residence
pleaded by the appellant under s. 13(1)(e) the trial court
made a finding against him. Even so, as a result of his
conclusion under s. 13(1)(h) the trial judge passed a decree
for ejectment in favour of the appellant.
Both the respondents challenged this decree by preferring an
appeal before the Senior Sub Judge at Delhi. The appellate
Court held that on the facts proved in the case it cannot be
inferred that the premises in suit were built for
residential purposes alone, and that evidence did not show
that the premises in question had been lot to respondent 1
for residence alone. The appellate judge examined the
conduct of the parties and held that it was proved beyond
any shadow of doubt that respondent 1 was using the premises
both for his residence and his professional work since the
inception of the tenancy without any objection on behalf of
the appellant, and so in his opinion the premises could not
be said to have been let for residence alone. He also found
that under the proviso to s. 13(1)(e) it cannot be said that
the premises were used incidentally for profession without
the consent of the appellant; in that view s. 13(1)(e) did
not apply to the case. Since the appellant had failed to
prove that the premises were residential premises within the
meaning of s. 13(1)(e) and (h) the appellate Court held that
respondent 1 could not be ejected. In the result the appeal
preferred by the respondents was allowed and the decree for
ejectment passed by the. trial Court against them was set
aside.
The appellant then took the dispute before the High Court of
Punjab by his revisional application. The High Court has in
substance agreed with the view taken by the appellate Court,
confirmed its main findings and has dismissed the revisional
application. The High Court has observed that in its
opinion the
682
appellate judge was fully justified in holding that the
premises were let out to the tenant for the purpose of
residence and for the purpose of his work as a member of the
medical profession. It has made an alternative finding that
even if it was assumed that the premises were let out to
respondent 1 for the purpose of residence the plea of bona
fide requirement made by the appellant was not proved and
the argument based upon s. 13(1)(h) was not available to the
appellant because the Golf Link building which respondent 1
had acquired cannot be said to be suitable for the conduct
of business if the neighborhood or the locality in which it
is situated is not suitable for that purpose. In the result
the High Court dismissed the appellant’s revisional
application It is against this decision that the appellant
has come to this Court by special leave.
It is relevant to refer to the material provisions of the
Act before dealing with the points raised for the appellant
by the learned Solicitor-General in the present appeal. The
Act applies to premises which are defined by s. 2(g) as
meaning, inter alia, any building or part of a building
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
which is, or is intended to be, let separately for use as a
residence or for commercial use or for any other purpose.
Section 13(1) provides that notwithstanding anything to the
contrary contained in any other law or any contract, no
decree or order for the recovery of possession of any
promises shall be passed by any Court in favour of the
landlord against any tenant including tenant whose tenancy
is terminated. This provision is, however, subject to the
exceptions provided under the several clauses of the
proviso. We are concerned with two of these. Section
13(1)(c) allows a decree for ejectment to be passed if the
Court is satisfied that the premises let for residential
purposes are required bona fide by the landlord who is the
owner of such premises for occupation as a residence for
himself or his family and that he has no other suitable
accommodation. The explanation to this clause provides that
for the purpose of this clause residential premises include
any premises which having been let for use as a residence
are, without the
683
consent of the landlord, used incidentally for commercial or
other purposes; and s. 13(1)(h) provides for ejectment in a
case where the Court is satisfied that the tenant has
whether before or after the commencement of this Act built,
acquired vacant possession of, or has been allotted, a
suitable residence. It is with these three provisions that
we are concerned in the present appeal.
It would be noticed that as soon as it is found that the
premises in question have been used by respondent 1
incidentally for professional purposes and it is further
established that this use is made with the consent of the
landlord then the case goes outside the purview of s.
13(1)(e) altogether. In the present case it has been found
by the appellate Court and the High Court that right from
the commencement of the tenancy a substantial part of the
premises is used by respondent 1 for his professional
purpose, and they have also found that this has been done
obviously with the consent of the landlord. It is
unnecessary to refer to the evidence on which this finding
is based. Even the trial Court was apparently inclined to
take the same view about this evidence but it did not fully
appreciate the effect of the explanation; otherwise it would
have realised that the professional use of a substantial
part of the premises with the consent of the appellant
clearly takes the case outside s. 13(1)(e). In other words,
where premises are let for residential purposes and it is
shown that they are used by the tenant incidentally for
commercial, professional or other purposes with the consent
of the landlord the landlord would not be entitled to eject
the tenant even if he proves that he needs the premises bona
fide for his personal use because the premises have by their
user ceased to be premises let for residential purposes
alone. This position cannot be seriously disputed.
Faced with this difficulty the learned Solicitor-General
attempted to argue that the very finding made by the Courts
below about the nature of the tenancy takes the premises
outside the purview of s. 2(g) of the Act. The argument is
that the premises cannot
684
then be said to have been let for use as a residence or for
a commercial use and so they ceased to be premises under the
Act. It is suggested that any other use which is specified
by s. 2(g) would not include a combination of residence with
commercial or professional purposes. The other use there
referred to may be use for charity or something of that kind
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
which is different from use as residence or commercial use.
In our opinion this argument is not well-founded. The three
kinds of user to which the definition refers are residence,
commerce and any other purpose which necessarily must
include residence and commerce combined. It may also
include other purposes as suggested by the learned
Solicitor-General. As soon as it is shown that the premises
have been let both for the use of residence and for
commercial purposes it does not follow that the premises
cease to be premises under s. 2(g); they continue to be
premises under the last clause of s. 2(g). This position is
wholly consistent with the division of the premises made
with reference to their user in paragraphs 3, 4 and 5 of
Part A in the Second Schedule to the Act. Therefore, in our
opinion, the argument urged by the learned Solicitor-General
on the construction of s. 2(g) cannot be sustained. It will
be recalled that the present suit has been filed by the
appellant himself praying for the respondent’s ejectment
under the provisions of the Act, and so the argument that
the Act does not apply to the premises in question can be
justly characterised as an argument of desperation.
Then it is contended that even if the appellant may not be
entitled to claim ejectment under s. 13(1)(e) he would be
justified in claiming a decree for ejectment against the
respondent independently under s. 13(1)(h). It is urged
that as soon as it is shown that respondent 1 has acquired a
suitable residence he can be ejected even though s. 13(1)(e)
may not apply to his tenancy. In our opinion, even this
argument is fallacious. Section 13(1)(h) applies to
tenancies which are created for essential purposes, and it
provides that in the case of such tenancies even if the
landlord may not be able to prove his case under s. 13(1)(e)
he would nevertheless be entitled to eject the tenant once
it is shown
685
that the tenant has acquired another suitable residence.
The requirement is that the tenant must have suitable
residence. Both words of the requirement are significant;
what he has acquired must be residence, that is to say the
premises which can be used for residence and the said
premises must be suitable for that purpose. If the promises
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 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. That is
the view taken by the High Court and we see no reason to
differ from the conclusion of the High Court.
The last argument urged by the learned Solicitor-General is
that respondent 1 should not be allowed to approbate and
reprobate as he has done in the present case. This argument
is based on the conduct of the respondent at the previous
stages of the dispute. It is true that in 1941 and onwards
respondent 1 has successfully urged that the tenancy was for
residence, and in consequence has secured the extension of
tenancy under cl. 11A of the New Delhi House Rent Control
Order, 1939, issued under r. 81(2)(bb) of the Defence of
India Rules. The statements made by respondent 1 in that
behalf indicate that he exercised his option of obtaining
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
extension of the lease on the ground that the premises were
let out to him for residence. The argument is that since by
the said representations he had actually obtained an
advantage he cannot be permitted now to contend that the
lease is not only for residence.
On the other hand the conduct of the appellant himself is
also inconsistent with the stand taken by
87
686
him in the present proceedings. In 1942 when he demanded an
increased rent from respondent 1 he made out a case which is
inconsistent with his present story that the premises were
let out to respondent 1 only for residence. The case then
made out by him appears to be that the tenancy fell under
paragraph 4 of Part A in the Second Schedule to the Act, and
that would mean that the premises had not been let only for
residence. Indeed the conduct of both the parties has been
actuated solely by considerations of expediency and self-
interest in this case, and so it would prima facie be idle
for the appellant to contend that respondent 1 should not be
allowed to approbate and reprobate. But, apart from this
fact, it is obvious that the appellant cannot be allowed to
raise this contention for the first time before this Court.
The plea sought to be raised can be decided only after
relevant evidence is adduced by the parties, and since this
plea has not been raised by the appellant at the proper
stage respondent 1 has had no opportunity to meet the plea
and that itself precludes the appellant from contending that
though the lease may not be one for residence alone
respondent 1 should not be permitted to urge that it is not
for residence but for residence and profession, It is the
settled, practice of this Court that new pleas of this kind
which need further evidence are not allowed to be raised in
appeals under Art. 136 of the Constitution.
The result is the appeal fails, but in the circumstances of
this case we direct that the parties bear their own costs
throughout.
Appeal dismissed.
687